We saw a good illustration of the paradigmatic Prisoner’s Dilemma (widely used in economics and other sciences) when Sidney Powell, one of Trump’s lawyers after his 2020 defeat, agreed on October 19 to a plea deal and recognized her guilt for some misdemeanors. She also had to promise to testify at the trials of her alleged accomplices. (“Sidney Powell Accepts Plea Deal in Trump’s Georgia Case,” Wall Street Journal, October 19, 2023.)
Remember that to demonstrate massive election fraud against Trump, Powell promised to “release the Kraken.” The Kraken never came, but the incentives imbedded in the Prisoner’s Dilemma eventually did.
The prisoner’s dilemma is a game-theoretic model in which each player’s optimal decision is to defect, that is, not cooperate with the other player(s), whatever the latter does—even if, for each of them individually, the best would be that they all cooperate. Defecting is said to be the “dominant strategy” of each player.
Consider a non-technical description of such a game. Two prisoners or criminal defendants are charged with a crime they committed together. If none of them plea-bargains and confesses, less evidence will be available to the prosecutor and they will be convicted of less serious offenses. But given the structure of a Prisoner’s Dilemma game, whether or not the other one plea-bargains, my best decision (for me Powell), is to defect. If, on the one hand, the other does not plea-bargain (he cooperates with me) but I confess our crime, I can dramatically reduce my own punishment and perhaps even be granted immunity for my testimony. If, on the other hand, the other one does plea-bargain first (he defects), I will be the sucker and get a worse sentence than in any of the other possibilities.
I know that the other defendant makes the same reasoning from his point of view, which further motivates me to plea-bargain before he yields to the same temptation. I prefer being the rat to the risk of being the sucker.
The day after Powell’s plea deal, lawyer Kenneth Chesebro, another one of the 19 defendants (including Donald Trump) charged with conspiring to subvert the 2020 presidential election in Georgia, rushed to confess a felony in return for a reduced sentence, again with the promise to testify (“Kenneth Chesebro Accepts Plea Deal in Trump Georgia Case,” Wall Street Journal, October 20, 2023). Preceding Powell, Scott Hall, a minor figure, plea-bargained and admitted his guilt to misdemeanors. The Prisoner’s Dilemma model explains why the dominos are falling. The ones against whom they fall are the principals in the alleged crimes like Rudolph Giuliani and ultimately Trump himself.
This analysis would be valid even if none of the defendants is actually guilty. In 16th-century France, an accused witch would often denounce other witches with the (usually vain) hope of escaping punishment. This suggests that the combination of plea bargaining and liberticidal laws like the supposedly anti-mafia RICO sort of law is an extremely dangerous power to grant to Leviathan. But this does not change the general fact that strong incentives push any individual involved in an illegal conspiracy to spill the beans. It also explains (as I wrote before) why vast conspiracies involving a large number of individuals who take great risks are unlikely.
READER COMMENTS
Vivian Darkbloom
Oct 22 2023 at 11:58am
I think you need to add to your calculus of when it is beneficial to agree to a plea bargain: the legal costs involved in entering a not-guilty plea and litigating a major and very public criminal trial are enormous. So are the emotional costs of undergoing such an ordeal. Early in my legal career ( a “baby lawyer” as Jim Glass likes to say) I was counsel for a few criminal defendants. On thing I learned from that experience is that the mere fact of being charged with a crime is a significant punishment and that punishment isn’t removed if one is eventually found not guilty. I also learned that, while the experience was very competitive and educational, I wouldn’t pursue that line of work because, among other things, having lunch with your clients is not one of the fringe benefits. Also, make sure you get paid up-front.
As somewhat of an aside, regarding Trump’s criminal charges, I’ve nowhere seen in the commentariat the issue of how hard it is going to be for the prosecution to get a jury without a MAGA supporter on it. Getting a unanimous verdict is going to be very challenging.
Pierre Lemieux
Oct 22 2023 at 1:57pm
Vivian: You are right: everything that is a cost and a benefit must be entered in each player’s “payoff matrix.” It is not my calculus, but every player’s calculus of his subjective and probabilistic costs and benefits. But if you want to explain the Prisoner’s Dilemma, you keep it simple. It’s a model. The Wikipedia explanation I linked to provides a bit more explanation but emphasizes that the formal characterization of the game is that for each player). As for the psychological cost of having been criminally charged, note that it is a sunk cost that will not influence posterior decisions.
steve
Oct 22 2023 at 2:31pm
Totally agree. I (my corporation) have been on both sides in that position ie couldn’t afford the legal costs and having the deeper pockets. These were civil suits and no one was going to jail so it was about money. It kind of didnt matter who had the better legal case just who could carry the legal costs. Then there is the time factor. The opposition knows it’s not just legal costs but also the costs of people missing work. Also agree that there is close to no chance of a conviction as there will be a Trump supporter or more on the jury and evidence wont matter.
Steve
Craig
Oct 23 2023 at 11:07am
“Getting a unanimous verdict is going to be very challenging.”
While not legally necessary, I learned that typically it takes more than one juror to successfully hold out.
Vivian Darkbloom
Oct 24 2023 at 4:26pm
I think you are correct, for two reasons. First, it is likely difficult psychologically for a sole juror to hold out in face of opposition by, say, eleven others. Second, judges would likely be much less likely to declare a hung jury if there is only one hold out.
In the case of Trump, it will be interesting to what extent the prosecution will be allowed to question potential jurors on their voting record, political affiliation, etc. See, e.g., Connor v. United States (1895!):
https://supreme.justia.com/cases/federal/us/158/408/
You can be sure that the social media accounts of all potential jurors will be carefully researched.
If prosecutors are allowed for cause or even peremptory challenges to those who admit to being Trump supporters, this will only add to the perception that the prosecution is politically motivated and also to the already divisive atmosphere surrounding the case. (Georgia allows up to nine peremptory challenges in felony cases).
Vivian Darkbloom
Oct 22 2023 at 2:16pm
Pierre, I don’t know how many defendants you have accompanied; however, the psychological cost of being charged is not sunk once the charge has been made. It’s not like the cost of, say, a capital asset. That’s because the cost is continuing and cumulative as long as the sword of Damocles hangs over your head.
Pierre Lemieux
Oct 22 2023 at 2:37pm
Vivian: You wrote:
Whatever cost “isn’t removed” at the time of making a decision is, by definition, a sunk cost.
Vivian Darkbloom
Oct 22 2023 at 7:02pm
“Whatever cost “isn’t removed” at the time of making a decision is, by definition, a sunk cost.”
Nice try, but that’s not very helpful when we apply your definition to actual facts (here, economic theory is sometimes useful, but experience is the better teacher).
There is only one event here: the act of being charged. The “cost” of that event is not only indeterminable but is also not fixed at the moment of the charge. As I said, the psychological cost is both continuous and cumulative. In this respect, it is impossible to separate the part of that cost that is “sunk” and the part that is prospective. Defendants often reduce the cost of that charge by pleading guilty. And yes, those continuing and cumulative costs arising from the event of getting charged *do* influence future behavior (as they should, in the real world applied to these facts).
If you want to quantify the sunk cost of getting charged from the prospective costs, please do so (and show your work!)
Richard W Fulmer
Oct 22 2023 at 2:36pm
This particular prisoner’s dilemma is made a bit more interesting because one of the “prisoners” could become president and pardon his fellow prisoners. Powell, presumably, considered that when she made her decision.
Pierre Lemieux
Oct 22 2023 at 7:23pm
Richard: My understanding is that the president cannot pardon a state crime. So in this case, whatever punishment is applied, Trump wouldn’t be (legally) able to do anything.
David Henderson
Oct 22 2023 at 3:05pm
You might also reference the Prisoners’ Dilemma article in The Concise Encyclopedia of Economics. It’s by Avinash Dixit and Barry Nalebuff. It’s here: https://www.econlib.org/library/Enc/PrisonersDilemma.html
David Seltzer
Oct 23 2023 at 1:14pm
Pierre: Classic Prisoners Dilemma. Powell was the first to roll and was charged with s misdemeanors. Cheseboro, in a last minute plea deal, was charged with a felony. I suspect Powell had a treasure trove of intel that insured a lighter charge. As the dominoes fall, a nice example of mathematical induction. In the case where evidence is lacking or weak, the best strategy is all “prisoners” remain silent. It seems there is considerable evidence.
AndyG
Oct 23 2023 at 4:33pm
Plea bargains and the “prisoner’s dilemma” are ubiquitous in criminal justice systems. Why is it more noteworthy or questionable for white-collar criminals (i.e., privileged criminals) than ‘common’ criminals?
Pierre Lemieux
Oct 24 2023 at 11:54pm
It is not.
Walt
Oct 24 2023 at 2:18am
Here’s another angle. Somewhere I read something by Guilliani to the point that he’d already testified under oath that neither he nor Trump believed her cockamamie theory and that it’s also on the official record that consequently they’d had her and Flynn (her apparent partner) barred from the White House. So IOW, at trial Trump and Guilliani swear that, yes, as she admitted, she was indeed guilty of promoting a crazy idea but they neither bought it or acted on it, so no crime on their part. (Analogous to someone being guilty of attempted bribery, but the bribee, who didn’t take the money, isn’t guilty of anything,) Even if she claims they bought it, it’s then a She said/They said, and unless there’s objective proof to the contrary, it’s moot.
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