by David M. Reutter

The developmentally immature decision-making decisions of child defendants makes them “likely to be systematically pleading guilty to crimes that they did not commit in predictable circumstances,” concluded a study by Rebecca K. Helm from England’s University of Exeter Law School. To protect children from such an injustice, it was recommended that solicitors and barristers obtain extra support in helping young people make the decision on whether to admit guilt.

While the study focused on guilty pleas in children in England and Wales, the situation there “is far from unique,” and it has “implications for plea systems around the world.” In fact, like the U.S., those systems rely heavily on guilty pleas to resolve the majority of criminal cases.

Guilty pleas are prevalent as a means to resolve criminal cases in major countries, with approximately 97% of cases resolved via pleas in the U.S. England’s Crown Prosecution Service is a close second with 91.65% of its convictions resolved by a guilty plea in 2016/2017. The country of Georgia resolved 87.8% of cases via plea. Russia and Australia closed 64% and 61.1%, respectively, of their criminal case by the defendant pleading guilty.

She began her analysis by looking at the legitimacy of convictions in a guilty plea system. Because the “criminal justice system now largely revolves around the decision making of defendants, it is important to understand this decision making and to ensure decisions are being made in a way that results in legitimate decisions,” wrote Helm. While regulations surround proceedings resolved by a judge or jury to ensure the legitimacy of a conviction, when a case is resolved by a guilty plea, the only concern is autonomy or voluntariness of the plea.

“The notion of autonomy utilized when regulating pleas is relatively narrow, focusing specifically on the plea decision itself being free from improper pressure,” Helm said. Voluntariness, however, “does not safeguard the accuracy or fairness of convictions and should not, by itself, be regarded as legitimizing convictions, particularly those of children.”

Helm noted that children are considered to have sufficient autonomy to enter guilty pleas to criminal cases, which carry both short term and lifelong consequences. Yet, those under 18 “are not considered to have sufficient autonomy to decide whether to smoke, gamble, or buy fireworks, or to decide who to vote for in an election.”

That’s because children are considered to be “individuals with agency, gathering and developing the assets necessary for full autonomy.” This should require going “beyond examining whether pleas are entered autonomously and instead to focus more holistically on whether guilty pleas result in accurate convictions reached in a fair way that respects rights.”

Helm delved next into the psychology of guilty plea decision making. Plea decisions are similar to many “risky” and “sure” decisions that psychology literature has studied. “Research on such decisions has confirmed that individual differences in decision makers, as well as the details of the decisions involved, can influence decisions to pick a sure outcome or a risky outcome. Research had also demonstrated illogical decisions in risky decisions,” Helm wrote. “Specifically, people prefer the risky option over the sure option when both options are framed in terms of losses and prefer the sure option over the risky option when both options are framed in terms of gains.”

Decision depends on whether an individual processes information to them based on gist or verbatim representations. “Gist representations are bottom-line meanings that a person extracts from information such as simple qualitative representations of numbers,” wrote Helm. “Verbatim representations are detailed superficial representations of exact information, including precise numbers and wording.”

The result is persons who rely on gist representations process information in a fuzzy and impressionistic way while individuals relying on verbatim representations process information in a more precise and superficial way. A neurotypical adult relies on gist representations to make decisions.

Because children are still developing psychologically, they are susceptible to making plea decisions that result in convictions that are not legitimate, Helm asserted. She supported that by looking at four factors that impact a child’s decision making.

First, children have trouble coding and retrieving accurate information. Most likely, this is due to misunderstanding deficits in communication. “For example, children often have response bias, which leads to a tendency to answer ‘yes’ or ‘no,’ rather than admitting they do not know or require clarification.”

Next, children exhibit differences in mental representations retrieved and subsequent cognitive processing. Unlike adults who rely on gist representations, children “rely on verbatim representations to a greater extent than adults.” This is important because “the distinction between factual guilt and innocence is a meaningful distinction that may not be captured by superficial verbatim representations. In addition, most people endorse the value that they would not want to plead guilty to a crime they did not commit, but only those relying more on gist are likely to appropriately retrieve and apply this value.

Verbatim representations make children “more likely than adults to plead guilty based on what may be considered modest and reasonable sentence reductions.” A study applying plea decisions in the U.S. context found that a minor sentence reduction of probation rather than custody was enough to entice child defendants to enter a guilty plea.

A third aspect is that children have shown low levels of inhibition and high levels of reward sensitivity. In practice, children rely on short-term benefits. “For example, one study found that evidence against them was not a significant predictor of plea decisions for defendants 11-14 (although note that it was for defendants aged 15-17),” Helm said. This puts child defendants “at particular risk of making inaccurate guilty pleas where an immediate reward can be obtained.”

Finally, children are more susceptible to pressure. Research shows that, in the guilty plea context, “children are likely to be responsive to advice from parents, peers, and lawyers.” Additionally, “a tendency to comply with the recommendations of lawyers makes child defendants particularly susceptible to any pressure to plead guilty placed on them by lawyers.”
Helm recommended that lawyers use open ended, rather than close ended, questions to probe children about their understanding. For instance, ask what are the consequences of a plea rather than if they understand the consequences. Lawyers should also receive training to help children “generate personally applicable ‘take-home’ messages” to assist them in making plea decisions. In some cases, using a trained intermediary may be appropriate.

“We now have a fairly good understanding of decision-making in children, and how it differs from decision-making in adults,” Helm said. “It is therefore not appropriate to continue to put children accused of criminal offenses in situations where it is predictable that they will ‘admit’ guilt even when innocent, and then punish them as if they were guilty. Ensuring children have appropriate and tailored protection when deciding to plead guilty is really important.” 

Sources: Journal of Law and Society, forensicmag.com

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