Whose decision is it anyway? Defendants’ prior experience shapes prosecutorial case dismissal

Abstract

Studies of early case processing outcomes in the United States typically assume that decisions are made unilaterally by the prosecutor, such that prior contact with the legal system is universally associated with harsher outcomes for defendants. However, this approach neglects the ways in which defendants are able to affect case outcomes, and that experienced defendants may be better positioned to do so. Contrasting expectations from the popular prosecutor-focused paradigm, we borrow insights from the legal psychology, deterrence, and rational choice literatures to consider whether prior experiences shape defendants’ ability to secure dismissals. Using administrative data collected from an urban prosecutor’s office, we find evidence that there is considerable nuance to the impact of defendants’ prior record. Although more prior cases generally decrease the likelihood that a defendant’s current case will be dismissed, higher rates of prior conviction avoidance notably increase it. Findings are consistent with the possibility of an experiential effect in defendant decision-making, in which defendants use prior court experiences to refine their estimates of the likelihood of case dismissal and exert agency in accordance with those estimates.