Bargaining in the Shadow of the Judge

Abstract: A fundamental assumption of the “bargaining in the shadow of trial” model is that prosecutors and defendants are focused on maximizing their utility based on the outcomes of the particular case. Unlike private parties, however, it is unclear whether prosecutors care only about the outcome of an individual case or have other considerations as well when negotiating plea bargains. Yet, very little is empirically known about plea bargaining negotiations “in the shadow of the judge.” Using data from Pennsylvania Courts of Common Pleas, the paper develops a novel approach building on the fact that defendants choose not only between a trial and a plea bargain—defendants may also choose to plead guilty (without negotiating a bargain) and leave sentencing to the discretion of the judge. Empirically evaluating the choice between negotiated and non-negotiated guilty pleas allows to isolate the impact of the judge on the outcomes of plea bargains separate from the effect of the expected “trial penalty.”