Whereas optimism skews predictions about the likelihood of con- viction and sentence, the related phenomena of denial mechanisms and psychological blocks skew assessments of one’s own guilt, which in turn affect predictions. Offenders find it hard to acknowledge guilt to their lawyers, and even to themselves, because feelings of guilt and shame are painful and depressing.158 Offenders use denial, excuses,
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151 See Almendarez-Torres v. United States, 523 U.S. 224, 269 (1998) (Scalia, J., dissenting) (cit- ing statistics showing that 98.2% of defendants under 8 U.S.C. § 1326 plead guilty); supra note 9 (citing statistics indicating that 94% to 95% of defendants plead guilty instead of going to trial).
152 See Gerry Pallier, Gender Differences in the Self-Assessment of Accuracy on Cognitive Tasks, 48 SEX ROLES 265, 270, 273–74 (2003).
153 See Paul W. Grimes, The Overconfident Principles of Economics Student: An Examination
of a Metacognitive Skill, 33 J.ECON. EDUC. 15, 23–26 (2002); Rebecca M. Pliske & Sharon A. Mutter, Age Differences in the Accuracy of Confidence Judgments, 22 EXPERIMENTAL AGING RES. 199, 212–14 (1996).
154 See Grimes, supra note 153, at 24–26; Gerry Pallier et al., The Role of Individual Differ-
ences in the Accuracy of Confidence Judgments, 129 J. GEN. PSYCHOL. 257, 273, 293–95 (2002). 155 Cf. Douglas A. Hershey & Jo A. Wilson, Age Differences in Performance Awareness on a
Complex Financial Decision-Making Task, 23 EXPERIMENTAL AGING RES. 257, 268–69 (1997) (finding that young novices are overconfident and youths with more experience are underconfi- dent, while older adults more accurately gauge their own performance).
156 Sometimes, however, prosecutors may buy off these overconfident offenders with more gen- erous plea bargains, if they are not so overconfident as to reject every deal. See infra pp. 2505– 06.
157 See JAMES Q. WILSON & RICHARD J. HERRNSTEIN, CRIME AND HUMAN NATURE 26 (1985).
158 See Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Proce-
and rationalizations to avoid taking responsibility159 and to block pain-
ful awareness of the harm they have done to others.160 Denial is a par-
ticularly large problem for certain especially shameful crimes, such as sex offenses.161 Denial takes many forms. Offenders often deny the
facts, their deeds, their knowledge, or their culpability; or they mini- mize how harmful or wrong their actions were.162 These denials are
not simply public-relations ploys. They reflect offenders’ fears of ad- mitting the truth to themselves.163 They flow from underlying atti-
tudes and cognitive distortions that impede clear perception of the truth.164 For example, offenders who falsely claim innocence to others
begin to deceive themselves and to distort what they remember and how they interpret those memories.165
Offenders who falsely believe they are innocent probably overesti- mate their chances of acquittal at trial because they think juries will share their own distorted perspectives. They also likely underestimate their expected sentences after trial, particularly under indeterminate sentencing, as they expect sentencing judges to see these cases from their perspectives. This overconfidence helps to explain why many de- fendants in denial find it hard to take advantageous guilty pleas even when they are “obviously guilty.”166 If a defendant cannot see the
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159 See KARL MENNINGER, WHATEVER BECAME OF SIN? 178 (1973) (“[A]ll evildoing in which we become involved to any degree tends to evoke guilt feelings and depression. These may or may not be clearly perceived, but they affect us. They may be reacted to and covered up by all kinds of escapism, rationalization, and reaction or symptom formation.”).
160 See Gad Czudner & Ruth Mueller, The Role of Guilt and Its Implication in the Treatment of
Criminals, 31 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 71, 73 (1987).
161 See MARC S. CARICH, SEX OFFENDER TREATMENT OVERVIEW: TRAINING FOR THE MENTAL HEALTH PROFESSIONAL 20 (1997); JUDITH LEWIS HERMAN, FATHER-DAUGHTER INCEST 22 (1981) (“Denial has always been the incestuous father’s first line of defense.”); BARRY M. MALETZKY WITH KEVIN B. MCGOVERN, TREATING THE SEXUAL OFFENDER 12–27 (1991).
162 See Bibas, supra note 158, at 1394 & n.159.
163 Richard M. Happel & Joseph J. Auffrey, Sex Offender Assessment: Interrupting the Dance of
Denial, 13 AM. J. FORENSIC PSYCHOL. 5, 6 (1995) (“[Sex offenders] are often sensitive about their deviance and afraid to admit the truth, even to themselves. The thought of being a sexual deviate can be so frightening or repugnant to them that they hide from themselves for years.”).
164 See Gene G. Abel et al., Complications, Consent, and Cognitions in Sex Between Children
and Adults, 7 INT’L J.L. & PSYCHIATRY 89, 98–101 (1984); Gene G. Abel et al., Sexual Offenders:
Results of Assessment and Recommendations for Treatment, in CLINICAL CRIMINOLOGY: THE ASSESSMENT AND TREATMENT OF CRIMINAL BEHAVIOR 191, 198–204 (Mark H. Ben-Aron et al. eds., 1985).
165 See John F. Ulrich, A Case Study Comparison of Brief Group Treatment and Brief Individ- ual Treatment in the Modification of Denial Among Child Sexual Abusers 52 (1996) (unpublished dissertation, Andrews University) (on file with the Harvard Law School Library).
166 See Alschuler, The Defense Attorney’s Role, supra note 11, at 1280 (quoting a defense lawyer as saying that “the psychological obstacles to confession in [a sex offense] case are so often over- powering” (internal quotation mark omitted)); id. at 1304 (discussing “a small group of obviously guilty defendants who are psychologically incapable of admitting their guilt”); see also Bibas, su-
weaknesses in his own case and the merit in the other side’s case, he cannot appreciate the reasonableness of the bargain offered. Prosecu- tors may sweeten their plea offers to try to buy off these defendants, but those in hard-core denial may reject all reasonable plea offers.167
The results will often be jury convictions and much heavier sentences after trial, which will surprise no one except the defendants.