THE W.B.

NATIONAL UNIVERSITY OF
JURIDICAL SCIENCES


ECONOMICS 2





GAME THEORY AND THE LAW- PLEA BARGAINING











VIRAJ BHIDE
206147
INTRODUCTION


GAME THEORY

Game theory is concerned with how rational individuals make decisions when they
are mutually interdependent [Romp (1997); 1]. Game theory gives us a formal
mechanism in order to study strategic behaviour, that is, the behaviour of entities
when they know that their actions affect other entities and vice versa. Game theory
studies games, which are formal models of interactive behaviour involving one or
more players. There are broadly two types of games, cooperative and non-
cooperative. In cooperative game theory, we study games involving coalitions and the
distribution of resources or benefits within them. In these games, we assume that the
players involved can form binding agreements with each other. Such games are best
applied in the field of political science and international relations (Turocy and
Stengel, 2001; 6). In non-cooperative games, it is assumed that each individual player
acts in his own best interests and the players cannot form binding agreements with
each other. Thus, every player chooses optimal strategies of behaviour in his own
interests. Game theory, as it is known today, was first used by Cournot in a study of
duopolies in 1838. However, the concept was given a firm footing in academic circles
only after the publication of Von Neuman and Oskar Morgensteins The Theory of
Games and Economic Behaviour in 1944. The bulk of Neumans research, however,
was based on co-operative and zero-sum games. John Nash was a pioneer in the
study of non zero-sum and non co-operative games. In 1950, he proved that all finite
games have at least one equilibrium [Turocy and Stengel (2001); 4]. This equilibrium
concept is famously known as the Nash Equilibrium
1
. A set of strategies is a Nash
equilibrium if no player has an incentive to deviate from her strategy given that the
other players do not deviate. [Ayres (1990) ; 1297].

The games in game theory can be solved in various manners to achieve unique
equilibria. These methods range from strict dominance and weak dominance to the

1
Professor Dixit has famously said that "If Nash got a dollar for every time someone wrote or said
'Nash equilibrium, he would be a rich man."
stronger concept of a Nash equilibrium. The concept of a Nash equilibrium has been
further refined to arrive at the concept of sub game perfection. Sub game perfection
refines the concept of a Nash equilibrium by ruling out the possibility of players
carrying out their threats if it is not in their interest to do so.
2


Game theory has much to offer to the field of law and economics. The techniques of
game theory are very often better suited to understanding the consequences of
asymmetric as well as private information. In fact, much of the literature in law and
economics based on game theory involves principle agent relationships where
information plays a major role and the problems of adverse selection and moral
hazard often arise
3
[Ayres (1990) ; 1291]. The law can substantially alter the
strategies of the players involved by trying to negate the problems of adverse
selection and moral hazard by trying to alter their payoffs. For example, Justice Oliver
Wendell Holmes Jr. has pointed out in his book The Common Law that sailors in the
middle ages were not paid any wages if their ship was wrecked. This was a device of
the law to ensure that moral hazard was minimised and sailors did their best to rescue
the ship before giving up.

However, the most important contribution of game theory to the field of law and
economics is in that it very often presents a very different picture of things vis--vis
classical economic analysis. Whereas the classical and neo-classical economists harp
on the benefits of laissez faire policies, game theoretical models, in several cases,
predict that these policies will lead players into inefficient equilibria.
4
Thus, game
theory, in several cases, gives supporters of governmental intervention in markets a
scientific high ground for their arguments [Ayres (1990) ; 1317]. Another important
diversion from the field of classical economics occurs when game theory does not
predict a uniform rate of change for some variable per change in some other

2
For a lucid explanation of the basic concepts of game theory, see Romp (1997), Game Theory:
Introduction and Applications, Oxford University Press, pp. 1-54.
3
Adverse selection happens when one set of players has private information. For example, if an
insurance agent could not ascertain the health of his potential clients and only unhealthy people insured
themselves, it would be a case of adverse selection. Moral hazard is when an agent can act in ways that
a principle cannot observe. For example, a client can never observe exactly how hard her lawyer is
working and the lawyer can thus slack off without her client being able to do much about it.

4
The most famous example one can give in order to substantiate this argument is the Prisoners
Dilemma.
exogenous variable. For example, a minor change in a particular players expected
payoff can alter his strategy, which in turn causes other players to alter their strategies
and thus lead to a totally different equilibrium position. This means that the
predictions of game theorists often happen to be unconventional, even counter-
intuitive. Thus, game theory forces us to take several factors into account before being
convinced about the outcome of a particular event.


PLEA BARGAINING

Plea bargaining is a form of pre-trial settlement in criminal law. The accused agrees to
plead guilty for a certain crime(s) and gets a penalty that is lesser than what he would
have got had he not pleaded guilty. The concept of plea bargaining began in the
United States in the 1920s [Rewari and Aggarwal (2006)]. It was touted as a way to
reduce the burden on the judiciary and to settle easy cases without too many
complications so as to allow the judiciary to focus on more important cases. This
concept has slowly but surely gained favour with several common law countries of
the world. It is claimed that over 95% of all guilty pleas in the United States and 90%
of all convictions in the United Kingdom are secured through plea bargaining.
[Garoupa and Stephen (2006)]. India, after long, has finally accepted the concept of
plea-bargaining. The Criminal Law (Amendment) Act, 2005
5
passed by Parliament
has added Chapter 21A titled Plea Bargaining to the Code of Criminal Procedure,
1973. This chapter provides for the defendant to file an application in the court of the
magistrate if he would like to plea bargain. The court would then sit in camera in
order to arrive at a mutually acceptable solution for the prosecutor, victim, defendant
and judge. The judge will then announce his judgement in an open court. The victim
is entitled to receive compensation and the accused may be released on probation (if
the law allows for it.) If the law provides for a minimum sentence, then the accused
gets half of the minimum punishment prescribed. However, this chapter appears to be
but an experiment with plea bargaining. This is because plea bargaining is only
allowed for offences which carry with them a maximal punishment of seven years
imprisonment. Further, habitual offenders and persons who have committed crimes

5
Act 2 of 2006.
against women, children or such crimes as those which tend to undermine the socio-
economic status of the country cannot avail of plea bargaining. This restriction has
been placed keeping in mind the critiques of the process of plea bargaining.

This paper will first analyse the approaches taken by researchers in the field of law
and economics to the concept of plea bargaining. It will then proceed to construct a
simple game-theoretic model of a plea bargaining game.



CHAPTER 1

PLEA BARGAINING AND ECONOMICS


A basic assumption before we proceed onto a review of the literature on plea
bargaining in the field of law and economics: a very simple way of looking at
criminal justice, from the point of view of social efficiency, is that society must
pursue criminal deterrence until the marginal benefit of doing so equals the marginal
cost.

Another very important feature of criminal law is that criminal law attempts to ensure
that no innocent person is convicted for a crime that she did not commit and also that
no guilty person is allowed to escape for a crime that she did commit. When an
innocent person is convicted, a type one error is said to have been committed and
when a guilty person is allowed to escape, a type two error is said to have been
committed [Lewisch (1999); 241].

The seminal paper in the field of law and economics on plea bargaining is by William
Landes in 1971 in The Journal of Law and Economics. In this work, he assumes that
the prosecutor has unlimited discretion in determining the fate of a defendant and the
prosecutor does not doubt the guilt of an accused person. He then construes the
profession of the prosecutor as the task of maximising deterrence given a budget
constraint. The ultimate goal of criminal law is ensuring an effective pricing
mechanism for crimes, that is, to ensure that the total benefits out of prosecuting a
defendant must be equal to the total social cost of the crime committed. Thus, plea
bargaining allows for a reduction of transaction costs. Landes then goes on to
demonstrate that the higher the real cost of a trial (that is, the ratio of the costs of
defence and the probability of conviction vis--vis the expected punishment and the
wealth of the defendant), the higher the probability of settling for a plea bargain.
Thus, we come to the conclusion that wealthier defendants would be less likely to
settle for a plea bargain compared to poor defendants and the higher the probability of
conviction, the higher the chance that the defendant would settle for a plea bargain.

This leads us to the self-screening argument propounded by Grossman and Katz in
1983, which, by assuming that the probability of conviction of a truly guilty defendant
is higher than the probability of conviction of an innocent defendant, proves that plea
bargaining will cause self-selection of guilty defendants, who would prefer more to
go for a plea bargain rather than to stand trial. However, this argument assumes,
rather erroneously, that all defendants are equally risk averse. It might be possible to
prove that guilty defendants are generally less risk-averse than innocent defendants,
because innocent defendants who do risk committing crimes in the first place, will be
more risk-averse than guilty defendants who initially take the risk of committing
crimes.

Landes model also predicts that defendants accused of offences having higher
prescribed punishments are less likely to settle for a bargain. However, this model
does not leave much room for the importance of avoiding type one and type two
errors in criminal justice administration, because it presumes that all defendants are
guilty.
6
This model further fails to incorporate the idea that the prosecutor is an agent
of justice and that she might not be a perfect agent.
7


This method of analysis, which primarily views plea bargaining as a method of
increasing efficiency in crime deterrence by reducing transaction costs, dominated
plea-bargaining literature [Garoupa and Stephen (2006)]. However, recently, there
have been many arguments against plea bargaining in law and economics literature.

Imperfect Agencies:
The dispensation of criminal justice involves several principal-agent relationships. As
the incentives of agents and principals are not always perfectly aligned, very often the
agents act in a method contrary to the aims of the principle. We therefore come across
the problems of moral hazard and adverse selection once again. Let us consider this

6
This flows from the assumption that the prosecutor presumes all defendants to be guilty and that
deterrence is proportional to the prosecutorial budget, because it means that if the prosecutor had an
infinite budget, any person that the prosecutor thought to be guilty could be proven guilty.
7
A perfect agent is an agent whose incentives are identical to the incentives of her principal.
thought experiment. A prosecutors incentives as well as her traits largely affect her
behaviour. Prosecutors are generally paid a fixed salary per unit of time. They are not
paid on a case by case basis. Thus, their incentives for ensuring justice in any given
case are not monetary but based on other factors such as reputation and public
opinion. The very fact that prosecutors prefer to be prosecutors rather than free-lance
lawyers hints their risk-aversion. Thus, one can predict that the lot of prosecutors is
extremely repellent to losing cases. Therefore, a prosecutor would rather take cases
where the chance of winning is very high to court and settle weak cases by plea
bargaining. This means that bargaining only takes place where the shadow of trial,
that is, the arrangement of incentives based on rules of evidence and probability of
conviction, is weak. Cases where the shadow of trial is strong go to trial. This is
exactly the opposite of what should ideally happen: in cases where the probability of
conviction is high and both parties know it, the bargain will be more efficient than in
cases where the probabilities are mixed. Similarly, the problem of adverse selection
occurs on the side of the defence. Assuming that the probability of conviction is
positively correlated to the probability of guilt, guilty defendants will try to hire better
lawyers than innocent defendants, because they have higher chances of being
convicted and thus more to lose. Better lawyers are more likely to be willing to go to
trial and win. Thus, the prosecutor will prefer to bargain with them. This means that
the bargaining power of the guilty defendant is more than that of the prosecutor. In the
case of an innocent defendant, however, his selection of a lawyer who is not as good
means that the prosecutor has better chances at trying and convicting the defendant.
Thus, the guilty are offered better plea bargains than the innocent.

Pre trial detention:
Similarly, pre-trial detention and bail have an important role to play in plea
bargaining. In cases where bail is not available to the defendant and he can offset his
period of imprisonment with the amount of time that he has been in prison already, it
is very often beneficial for even a defendant who calculates his probability of
conviction as zero, given the time and the costs of a trial, to plea bargain and actually
spend lesser time in prison. In such a case, one actually finds that guilty defendants
who plea bargain are better off than the innocent defendants who stand trial and win.
This leads us to the issue of increasing the levels of punishment that we will deal with
later.

Imperfect Information:
In a two person game where evidence is not available to both the prosecutor and the
defendant and the defendant alone is aware of his guilt or innocence, the bargaining is
once more skewed in favour of the guilty defendant. This is because the guilty
defendant will generally have a better estimation of the evidence available with the
prosecutor than an innocent defendant. Further, innocent defendants, generally being
more risk-averse, will be worse off due to prosecutorial bluffing [Bibas (2004) ;
2495].

These defects of plea bargaining therefore call into question the very process. If plea
bargaining cannot solve the problems associated with the discovery of truth in
criminal justice administration or help minimise type one and type two errors, it might
be fine, if it at least increases the efficiency of criminal deterrence. However, if plea
bargaining affects innocent defendants adversely while affecting guilty defendants
less adversely or even making them better off, there is a problem with the concept.

In fact, the above-stated critiques to plea-bargaining point out that when trials have
their deficiencies, the introduction of plea bargaining to bypass trials creates its own
set of deficiencies which might be worse than the problems of trials itself. For
example, when an innocent defendant is forced to accept a plea bargain because the
probability of being convicted at a trial is high, it highlights both the deficiencies of
the system of trials as well as its reflection in the system of plea bargaining. But when
prosecutors, in order to increase the number of convictions attributed to them, plea
bargain with defendants who would have otherwise been held innocent in trials by
taking advantage of their risk aversion and their unwillingness to bear the costs of a
trail, it represents more than just a reflection of the deficiencies of the trial system: it
presents a new problem altogether.

Therefore, the researcher would like to point out that plea bargaining is no substitute
for trials. At best, it can be a method of dealing with criminals in a cost effective
manner in a system where trials are perfect.

Further, there the long term effects of plea bargaining are also a cause of concern. For
example, plea bargaining will actually reduce the price of committing a crime and
thus the punishment for the crime must be increased in order to sustain the levels of
deterrence [Roberts (2000)]. This means that the entire price of a crime that is
intended by legislators will not be the actual punishment laid down in the legislations,
but an approximation of the discounted punishment that will be given to guilty
defendants on plea bargaining. This has two implications: firstly, with the increase in
the punishment on conviction in trial, innocent defendants who are already risk averse
might have more incentives to plea bargain than to stand trial. Conversely, the
reduction that this brings in the real cost of the trial might mean that more defendants
stand trial. However, the more important implication is that defendants who choose to
stand trial and are convicted now face a greater penalty than was earlier imposed on
them. Does this not mean that plea bargaining will, in the long term, impose a price
on the right to a fair trial? Further, the continuous use of plea bargaining might end up
creating a different system of law itself, because with rare cases going to trial, the
expected outcome of trials itself becomes unclear and thus the parties bargain without
any mental landmarks. [Lynch (2003) ; 24].

What emerges gradually is that plea-bargaining cannot compensate for the short
comings of trials. [Sandafeur (2003) ; 31]. In fact, very often, the short comings of
trials actually accentuate the problems associated with plea bargaining.
CHAPTER 3

THE PLEA BARGAINING GAME

In this chapter, the researcher will attempt to construct and solve an elementary plea
bargaining game consisting of two players, the prosecutor and the criminal defendant.
We shall assume that the prosecutor is a perfect agent of society. We assume that
trials are perfect vis--vis plea bargains, which means that if a trial would have
acquitted a defendant and he goes for a plea bargain, then the society loses by putting
a person in prison when he would have otherwise been acquitted. The prosecutor and
the defendant draw up probabilities of the outcome based on the evidence at hand. We
assume that evidence is common knowledge. We make Nature the first player, who
decides whether a defendant will be acquitted or convicted at a trial. The prosecutor
and the defendant estimate Natures move based on a certain probability distribution,
C1 being the probability of being held guilty, C2 being the probability of being held
innocent and C1+C2 =1. The next player in this game is the prosecutor, who does not
know which node he is on and has to decide between going to trial and offering a plea
bargain to the defendant. If the prosecutor decides to go for trial, we get the payoffs
immediately for both the defendant and the society. If the trial holds the defendant
innocent, we assume that the prosecutor/society gets a payoff of a (a>0) (because of
the costs of prosecuting a defendant who turned out to be innocent) and the defendant
gets a payoff of 0. If the trial holds the defendant guilty, then the prosecutor gets a
payoff of b (>0) and the defendant gets a payoff of c (c>0). If the prosecutor decides
to go for a plea-bargain, then the defendant has to make a choice between accepting
the offer or rejecting it. If the defendant accepts the plea, then the prosecutor will gain
in cases where a trial would have held him guilty by d (> b) and the defendant gets a
payoff of -e (-c<-e<0). If a trial would have held the defendant not guilty, then the
prosecutor loses by f (f >0) and the defendant loses by e. If the defendant still
decides to go to trial, then the payoffs are identical to the payoffs in the case of the
prosecutor directly resorting to trial.





Fig, 1

Extensive Form of Plea Bargaining Game Between Prosecutor and Defendant
Payoffs are denoted as (Prosecutor, Defendant)




Given this game, we should now first predict optimal defendant behaviour. Let the
payoff that the defendant receives from accepting the plea bargain be equal to
(Accept).

(Accept) = C1.(-e) + C2.(-e)
= C1.(-e) + (1-C1)(-e)
= -e.C1 e + e.C1
= -e.
Similarly,
(Reject) = C1.(-c) + C2.(0)
= -c.C1
Therefore, given the two expected payoffs, the defendant will try to maximise his
utility and choose accordingly. Further, as we have assumed that c>e and because
C1<1, we can never be sure about which particular payoff is higher given the
functions. However, in any particular game, the values of C1, e and c will be known
(b,-c)
(d,-e)
(b,-c)
(-f,-e)
(-a,0)
(-a,0)
N
P1
P2
D1
D2
Hold Guilty (c1)
Hold Innocent (c2)
Go for trial
Go for trial
Offer bargain
Offer bargain
Accept
Accept
Reject
Reject
to both the prosecutor and the defendant and thus the prosecutor will know which
option the defendant will choose given the situation. Thus, we can now induce the
prosecutors behaviour given the defendants payoff and the probability of conviction.
We will get two distinct situations.

i) Given e < c.C1,

(Offer Bargain) = C1(d) + C2(-f)
= d.C1 f.(1-C1)
= d.C1 f + f.C1

Similarly,

(Go for trial) = C1.(b) + C2.(-a)
= b.C1 a.(1- C1)
= b.C1 + a.C1 a.

In this case, d represents the social benefit by deterrence through plea bargaining with
a guilty defendant whereas b represents the social benefit by deterrence through
successfully trying a guilty defendant. According to several theories, d > b, because a
lot of prosecutorial resources are saved by avoiding costly trials.

Therefore, b.C1 < d.C1. However, f must be greater than a, because the cost of having
an innocent defendant plead guilty is certainly higher than the cost of unsuccessfully
prosecuting him. Therefore f is certainly lesser than a. This also means that f.C1 is
greater than a.C1.

Thus, the prosecutor/societys behaviour will fully depend on the relative disutility of
putting an innocent defendant behind bars on a plea bargain vis--vis losing money on
an unsuccessful trial.

ii) Given that e > c.C1,

The only possible outcome for the prosecutor will be

(Go for trial) = C1.(b) + C2.(-a)
= b.C1 a.(1- C1)
= b.C1 + a.C1 a.

It must be noted that the essence of this game is not altered even if the defendant
moves first. In this case, the functions of the expected payoffs for both the players do
not change and thus the decision making does not change.

This game thus proves that if trials are good indicators of guilt, then plea bargains will
lead to more innocent defendants standing trial and more guilty defendants accepting
plea bargains. This is because, given a good trail system, C1 for an innocent
defendant will be close to zero, which means that the expected utility of standing trial,
-c.C1, will be greater than the expected utility of plea bargaining e.

A brief note must be made of the negative utility that the prosecutor/society receives
when a defendant accepts a plea bargain even where a trial would have held him
innocent. Firstly, when a trial would have convicted the defendant, it is still better for
a prosecutor and a defendant to go in for a plea-bargain because it saves the
prosecutor/society the transaction costs of the trial, part of which is transferred to the
defendant in the form of a lesser sentence. However, when a trial would have held a
defendant innocent and the players still agree to bargain, we assume that society loses
because it punishes an innocent person. One might argue that because the
prosecutor/society only prosecutes defendants that it thinks are guilty it should gain
when it punishes them. However, we must assume that the prosecutor/society believe
in justice through trials and would not like to punish people who would have
otherwise been held innocent in trials. The bargaining process takes place only
because it saves transaction costs.

This game leads us to the conclusion that plea bargaining can lead to the miscarriage
of justice if society does not give much importance to not punishing innocent
defendants. It also leads us to the conclusion that plea bargaining can lead to the
miscarriage of justice when rules of evidence are biased in favour of the prosecution
and it is easy to convict defendants on false evidence. However, on the assumption of
perfect trials, all innocent defendants would stand trial whereas all guilty defendants
would prefer to bargain.




CONCLUSION

The tools of game theory have allowed economists to add several variables to models
which they could not earlier account for. Thus, game theory has drastically altered the
way economists think about several phenomenon. This shift has emerged from the
most fundamental assumption of game theory, which was neglected by the classical
economists: the behaviour of one player affects the payoffs of another player. This
insight has thus allowed for the study of various subjects in more realistic ways. The
growing significance of game theory has been best illustrated by Frank Fisher, who
calls it the premier fashionable tool of microtheorists [Ayres (1990); 1]. He says,
Bright young theorists today tend to think of every problem in game-theoretic
terms.every department feels it needs at least one game theorist or at least one
theorist who thinks in game-theoretic terms. [Ayres (1990); 1]. However, game
theory itself suffers from several drawbacks. This includes the possibility of multiple
equilibria, the problems of considering too much of information and the problems
related to making arbitrary assumptions. However, one cannot deny that it brings
about a completely different way of thinking about phenomenon.

Plea bargaining has been a source of much discussions amongst scholars in the field
of law and law and economics alike. Though several claims have been made in order
to present good justifications for plea bargaining, the primary justification is that plea
bargaining reduces transaction costs, which are borne mostly by the State and thus the
defendant is rewarded with a reduction in his punishment. Several scholars have
highlighted the fact that plea bargaining has been detrimental to the interests of
justice. However, there is no consensus whatsoever on whether it disproportionately
puts innocent defendants at a disadvantage. Which is not to say that there are no solid
arguments in favour of that proposition.

The arguments against plea bargaining were well summed up by Justice Krishna Iyer
way back in 1976, in Murlidhar Meghraj Loya v. State of Maharashtra
8
:
Many economic offenders resort to practices the American call 'plea bargaining', 'plea
negotiation', 'trading out' and 'compromise in criminal cases' and the trial magistrate drowned
by a docket burden nods assent to the sub rosa ante-room settlement. The business-man culprit,

8
AIR 1977 SCC 435.
confronted by a sure prospect of the agony and ignominy of tenancy of being a plea of guilt,
coupled with a promise of 'no jail'. These advance arrangements please everyone except the
distant victim, the silent society. The prosecutor is relieved of the long process of proof, legal
technicalities and long arguments, punctuated by revisional excursions to higher courts, the
court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by
one case less and the accused is happy that even if legalistic battles might have held out some
astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is
free early in the day to pursue his old professions. It is idle to speculate on the virtue of
negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction,
especially in the area of dangerous economic crimes and food offences, this practice intrudes
on society's interests by opposing society's decision expressed through pre-determined
legislative fixation of minimum sentences and by subtly subverting the mandate of the law.


Given the arguments outlined against plea bargaining in Chapter Two, the researcher
is of the opinion that the introduction of plea bargaining in India is a dangerous
experiment. The opinion of several scholars on plea bargaining is summarised by a
recent article in a well-known journal which said that plea bargaining was a disaster
in criminal procedure [Garoupa and Stephens (2006)]. With the arguments forwarded
by the proponents of plea-bargaining, plea bargaining starts to seem like nothing but a
form of escapism from a failed system of trials. By setting up an efficient pricing
mechanism for crimes, it also sets up an efficient pricing mechanism for rights. As
Timothy Lynch has concluded in his essay against plea bargaining,

The Framers of the Constitution were aware of less time-consuming trial procedures when
they wrote the Bill of Rights, but chose not to adopt them. The Framers believed the Bill of
Rights, and the freedom it secured, was well worth any costs that resulted. If that vision is to
endure, the Supreme Court must come to its defense. [Lynch (2003) ; 27].


It is most ironic that the researcher, while trying to write a paper combining game
theory, a device that has found fault with the laissez-faire philosophy in several
instances and plea bargaining has found a fault with the efficiency argument
forwarded in favour of plea bargaining.

Nonetheless, the researcher would like to reiterate the importance of a good system of
trials for the purposes of improving both the efficacy and the efficiency of plea
bargaining.
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