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Abstract: In theory, there is one criminal justice system. In practice, it is as if there are two criminal justice systems: one for first-time offenders, and one for defendants with a criminal record. Defendants with prior convictions are subject to disparate treatment and worse outcomes at each point of the criminal justice process: policing, bail, plea bargaining, trials, and sentencing. These realities exacerbate racial discrimination, entrench defendants in poverty, expose them to wrongful convictions, and result in counterproductive criminal justice policies.
This article argues that the combined effects of information failures and cognitive biases help explain why prior offenders experience a harsher criminal justice system. Information failures occur when defendants have knowledge that other justice system actors lack. Cognitive biases, on the other hand, are error-prone heuristics that individuals use to make decisions when faced with uncertainty.
This article demonstrates how police officers, prosecutors, judges, and jurors screen for criminal records to reduce information failures and make decisions. Yet their knowledge of prior convictions induces powerful cognitive biases against repeat offenders. Defendants with a criminal history adjust their conduct to these cognitive biases by waiving their rights, pleading guilty to crimes they never committed, accepting less favourable plea bargains, and refusing to testify at trial. The concluding parts of this article show how choice architecture can promote more egalitarian treatment and fairer outcomes for prior offenders, both inside and outside the criminal justice system.
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