Undisclosed Episode 12 & the Prisoners’ Dilemma in the American Criminal Justice System

Last night, we premiered Episode 12 of the Undisclosed Podcast: “Prisoners’ Dilemma.” I suggested the title in part because of the classic prisoners’ dilemma problem from game theory. The prisoners’ dilemma, however, is not something merely relegated the realm of the theoretical. It is something that plays out every day in a criminal justice system dominated by plea bargaining.

Here’s Judge Easterbrook talking about a real world version of the prisoner’s dilemma in Page v. United States, 884 F.2d 300 (7th Cir. 1989):

Students of strategy and bargaining cut their teeth on the game of Prisoners’ Dilemma. Two prisoners, unable to confer with one another, must decide whether to take the prosecutor’s offer: confess, inculpate the other, and serve a year in jail, or keep silent and serve five years. If the prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can’t communicate, and each fears that the other will talk. So both confess. Studying Prisoners’ Dilemma has led to many insights about strategic interactions. See Thomas C. Schelling, The Strategy of Conflict 53-80, 119-61 (1960; 1980 rev.); Robert Axelrod, The Evolution of Cooperation (1984). Eldon Page did not have the leisure to study the game before he had to play it.

Page and Maurice Falls were charged with armed bank robbery. On the day set for Page’s trial, the prosecutor appeared with Falls in tow. Falls had signed an agreement promising, in exchange for a lower sentence, to plead guilty and testify against Page. After the judge accepted Falls’ plea, Page caved in and pleaded guilty too. Back in jail, Falls and Page were able at last to coordinate. Each presently asked leave to withdraw his plea. Too late, the judge said. Both were sentenced and appealed. We affirmed in an unpublished order.

Page later appealed, claiming that he received the ineffective assistance of counsel. The Seventh Circuit, however, rejected this claim, concluding that

Counsel advised Page to get the best deal he could after Falls turned against him. Page is not the first and will not be the last to feel the sting of Prisoners’ Dilemma, and the Constitution does not demand that counsel escape a predicament that game theorists consider inescapable in one-shot performances.

Later, in United States v. Maddox, 48 F.3d 791 (4th Cir. 1995), the Fourth Circuit reached a similar conclusion, noting that

Such versions of the “Prisoners’ Dilemma” during plea negotiations are rather commonplace because they are effective and courts have held that they are constitutional. See, e.g., Page v. United States, 884 F.2d 300 (7th Cir. 1989) (discussing the Prisoners’ Dilemma and denying an ineffective counsel claim based upon counsel’s inability to solve a Prisoners’ Dilemma plea offer). The combination of statutory mandatory minimum sentences and the exclusive power to move for downward departure based upon substantial assistance allow the government to play hardball during plea negotiations.

-CM