Document Type
Article
Publication Date
6-2004
Abstract
Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The oversimplified shadow-of-trial model of plea bargaining must thus be supplemented by a structural-psychological perspective. In this perspective, uncertainty, money, self interest, and demographic variation greatly influence plea bargains. Some of these influences can be ameliorated, others are difficult to correct, but each casts light on how civil and criminal bargaining differ in important respects.
Keywords
Criminal Law and Procedure, Criminal Sentencing
Publication Title
Harvard Law Review
Repository Citation
Bibas, Stephanos, "Plea Bargaining Outside the Shadow of Trial" (2004). All Faculty Scholarship. 924.
https://scholarship.law.upenn.edu/faculty_scholarship/924
Included in
Criminal Law Commons, Criminal Procedure Commons, Criminology Commons, Criminology and Criminal Justice Commons, Dispute Resolution and Arbitration Commons, Jurisprudence Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Philosophy Commons, Psychology Commons, Public Law and Legal Theory Commons, Social Control, Law, Crime, and Deviance Commons
Publication Citation
117 Harv. L. Rev. 2463 (2004).