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Plea bargain: In criminal justice, plea bargaining is an agreement between the prosecution and the defendant in which the defendant agrees to plead guilty to one or more charges in exchange for a reduced sentence or the dismissal of other charges. See also Court proceedings.
Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments.

Author Concept Summary/Quotes Sources

Stephanos Bibas on Plea Bargain - Dictionary of Arguments

Parisi I 63
Plea bargain/Bibas/Jolls: For criminal defendants, Bibas suggests, the “natural baseline” in considering entry into a plea bargain will often be acquittal or probation rather than a jail sentence (Bibas, 2004(1), p. 2544). Accordingly, criminal defendants will tend to regard jail sentences as “sure losses” (Bibas, 2004(1), p. 2509) that, under loss aversion, will loom large or, in Simonian terms, will be viewed as “unsatisfactory.” >Bounded rationality/Simon
Loss aversion: Such “loss framing” (Bibas, 2004(1), p. 2544) by defendants will naturally tend to discourage their entry into plea bargaining agreements. From a legal policy perspective, Bibas highlights the way in which sentencing guidelines—which replace the significant sentencing discretion judges traditionally exercised with fairly determinate sentences for offenders - may commute (whether or not desirably overall) the effects of both optimism bias and loss aversion. Bias: “[T]he legal system,” he notes, “use[s] general debiasing tools. … If … young men are especially overconfident, … sentencing guidelines [respond by reducing] the room for overconfident predictions of how judges will sentence” (Bibas, 2004(1), p. 2544).
Optimism bias/Sentencing guidelines : As Bibas notes, sentencing guidelines replace a wide-ranging set of potential outcomes, the probabilities of the worst of which overconfident defendants will tend to underestimate, with a relatively determinate outcome that tamps down the effects of optimism bias.
Loss aversion: With respect to loss aversion, meanwhile, “[s]entencing guidelines may break the habit of loss framing in criminal cases by making the sentence after trial the natural baseline” (Bibas, 2004(1), p. 2544).
Sencencing guidelines: Sentencing guidelines, Bibas suggests, may reframe the implicit benchmark of acquittal or probation to a “natural baseline” of a jail sentence; if so, then a loss-averse defendant might be more open to entry into a plea bargaining agreement. In Bibas’s optimism bias account of plea bargaining, sentencing guidelines reduce the prevalence of empirically inaccurate beliefs about the probabilities of various potential outcomes; in this way, the guidelines mitigate a problem of nonomniscience. ((s) For non-omniscies: >Bounded rationality/Jolls.)
Behavior/Jolls: Note, however, that any reduction here in the prevalence of errors in judgment is achieved not through directly mitigating individuals’ overoptimism, but rather through shrinking the set of possible outcomes on which optimism bias could operate in the first instance. In this respect, normative analysis of the guidelines differs from normative analysis of many other legal responses (...).
Parisi I 64
Loss aversion/Jolls: In the loss aversion account of plea bargaining, normative analysis is harder still. Are defendants who come to accept plea bargain offers as a result of the guidelines’ “reframing” better off? Is the use of the guidelines in response to loss aversion a “debiasing tool” (Bibas, 2004(1), p. 2544)?
Normative analysis of the guidelines: Bibas’s own normative discussion focuses on discrepancy-reducing effects of sentencing guidelines. Because, for instance, of the point that young male defendants will be especially likely to exhibit optimism bias, constricting the domain within which optimism bias may have an effect will even out disparities across classes of defendants, similarly, because loss framing tends to be impacted by defendants’ age, the guidelines may even out arbitrary age-based sentence disparities (Bibas, 2004(1), p. 2544).

1. Bibas, Stephanos (2004). “Plea Bargaining Outside the Shadow of Trial.” Harvard Law Review 117: 2463–2547.

Jolls, Christine, „Bounded Rationality, Behavioral Economics, and the Law“. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press.

Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments
The note [Concept/Author], [Author1]Vs[Author2] or [Author]Vs[term] resp. "problem:"/"solution:", "old:"/"new:" and "thesis:" is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Bibas, Stephanos
Parisi I
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017

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