Six Flags Syndrome: Price Discrimination In Plea Bargaining
posted by Dan Filler
Price discrimination occurs when any seller charges two different buyers a different price for the same product. Coupons are one obvious method of price discrimination. Airline advance purchase requirements are another. The term sounds ugly, but it’s basic marketing. One major area of price discrimination occurs between sophisticated and unsophisticated consumers. Uninformed car buyers often pay more for their autos than those who arrive with the newest pricing data from Edmunds. And while many web buyers routinely pay full price, others of us consult Coupon Cabin, Mom’s View, or XP Bargains before ordering online. We don’t do anything special for the discount; we just know enough to check for coupons.
In a blunt admission of price discrimination based on consumer sophistication, Six Flags’ VP for ticketing, Steve Brown, stated) “any guest paying full pirce at our parks is probably not doing their homework.”
Perhaps all is fair in love and sales, but what about plea bargaining? Would we feel OK if US Attorney Patrick Fitzgerald announced that “anyone pleading to ten years on a marijuana charge probably didn’t do his homework”? As a public defender, I often discovered that a DA’s “best” offer wasn’t on the table initially. I had to request it. Sometimes I provided good reasons for a better deal – I cast the client in a new light, for example, or discussed an extenuating circumstance. But often I simply scrunched up my face and said “come on, you can do better than that”…and he or she would serve up a better offer. I understood the game; as a public defender, I played it every single day.
But it turns out that clients – and more importantly lawyers – are often surprisingly unsophisticated in the negotiation process and will not demand the best posible offer. I’m reminded of a friend who was handling his first serious felony. His client faced a mandatory 6 year bid for the gunpoint robbery, but the DA was offering 10 years. My friend planned to ask for seven years. After we talked, I explained that in my jurisdiction (we were in different states), a first time offender facing these charges would usually receive the mandatory minimum. I encouraged him to ask for six years. And that’s exactly what his client got. But if he’d asked for seven years – his initial plan – the client would have served an extra year.
So should prosecutors “take advantage” of unsophisticated opponents by jacking up offers?
Intuitively, it seems to me that it is unfair and inappropriate for a person to serve extra time in prison simply because his or her attorney didn’t realize he or she could get a better deal just by asking. My instinct is that DA’s should offer the minimum sentence they consider fair, in light of the charges, the costs of proceeding, and the strength of the case. That doesn’t mean they shouldn’t be open to lowering their offer. But the offer shouldn’t drop simply because a lawyer bothers to ask. Instead, prosecutors should soften their offers if they receive new information about the crime, the defendant, or the evidence.
As is probably obvious, there are serious limits to my analysis. No matter how much people like me squawk, DA’s will base offers, at least in part, on the quality of defense counsel. When a DA confronts a top defense lawyer, the “price” of settlement will probably drop. It is clearly more efficient for the DA to attempt to engineer a deal in these cases, even if the defendant gets a shorter sentence solely because he or she hired a great attorney. But is efficiency is enough to justify this disparate treatment based on lawyer quality? And is there a difference between making a higher (but non-negotiable) offer to a lousy trial lawyer and making a higher offer to an unsophisticated lawyer, knowing full well you’d improve the deal if the lawyer bothered to press you?
Maybe, at the end of the day, all we have is a prosecutor’s eithical duty to seek justice. Can others think of a rules – aspirational, even if not enforceable – that could help avoid what we might call Six Flags Syndrome: defendants taking worse deals because their lawyers didn’t bother to seek out a better pirce?