The "bargaining in the shadow of the trial" model, which has dominated the legal literature for t... more The "bargaining in the shadow of the trial" model, which has dominated the legal literature for the last fifty years, argues that the decision to extend, accept, or reject a plea bargain reflects the probable trial outcome. Model critics note that structural-legal and psychological factors often result in plea-bargaining outcomes that diverge significantly from trial outcomes, thus suggesting that the model requires modification. Our proposed model "trial in the shadow of the bargaining range" aims to better account for the relationship between plea-bargaining and trial outcomes. Specifically, our model explains why plea bargains catalyze a dynamic feedback cycle that leads to a continuous widening of the bargaining range and increased sentencing disparities in similar cases. To test this prediction, we defined measures that have never been used in the literature to estimate punishment disparities. These measures are based on the sanction ratio-the ratio of sentencing severity in a plea bargain to expected trial sentence. Finally, we confirmed our model's predictions through an empirical analysis of 2761 cases in which defendants were found guilty of violating Israel's law against aiding illegal aliens between 1996 and 2007, a period during which the rate of plea bargains increased. Results also suggest, contrary to the dominant model, that exogenous changes in the level of sentencing affect the sanction ratio.
The "bargaining in the shadow of the trial" model, which has dominated the legal literature for t... more The "bargaining in the shadow of the trial" model, which has dominated the legal literature for the last fifty years, argues that the decision to extend, accept, or reject a plea bargain reflects the probable trial outcome. Model critics note that structural-legal and psychological factors often result in plea-bargaining outcomes that diverge significantly from trial outcomes, thus suggesting that the model requires modification. Our proposed model "trial in the shadow of the bargaining range" aims to better account for the relationship between plea-bargaining and trial outcomes. Specifically, our model explains why plea bargains catalyze a dynamic feedback cycle that leads to a continuous widening of the bargaining range and increased sentencing disparities in similar cases. To test this prediction, we defined measures that have never been used in the literature to estimate punishment disparities. These measures are based on the sanction ratio-the ratio of sentencing severity in a plea bargain to expected trial sentence. Finally, we confirmed our model's predictions through an empirical analysis of 2761 cases in which defendants were found guilty of violating Israel's law against aiding illegal aliens between 1996 and 2007, a period during which the rate of plea bargains increased. Results also suggest, contrary to the dominant model, that exogenous changes in the level of sentencing affect the sanction ratio.
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Papers by Yosef Zohar