Defendant Attributes in Plea Bargaining: Notes on the Modeling of Sentencing Decisions

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Abstract
Previous research on how defendant attributes affect sentencing decisions has relied mainly on “variable analysis.” This paper argues that such research improperly models the decision process. In plea bargaining, defendant descriptions are selected from an array of possible attributes. They are related to other descriptions and “facts” of a case, in a contextual manner, to justify a defense or prosecution position regarding sentence. To properly model the relation of defendant attributes to case dispositions, a gestalt framework is required. This would allow the investigation of commonsense reasoning practices and typifications involved in decisionmaking. The question of whether all defendants receive “equal treatment before the law” is related to what kinds of typifications are employed by lawyers and judges. Where “variable analysis” uses a standard of formal rationality to measure how well the courts administer justice, the standard displayed in plea bargaining is substantive rationality.