Why Plea-Bargaining Fails to Achieve Results in So Many Criminal Justice Systems: A New Framework for Assessment
| Author | Frank H. Stephen,Nuno Garoupa |
| Published date | 01 September 2008 |
| Date | 01 September 2008 |
| DOI | 10.1177/1023263X0801500303 |
| Subject Matter | Article |
15 MJ 3 (2008) 323
WHY PLEABARGAINING FAILS TO
ACHIEVE RESULTS IN SO MANY
CRIMINAL JUSTICE SYSTEMS: A NEW
FRAMEWORK FOR ASSESSMENT*
N G** and F H. S***
ABSTRAC T
e myth of American exceptionalism in the matter of plea-bargaining is certainly by
now quite untru e. In addition to for ming an important part of criminal procedure in the
United Kingdom, plea-bargaining has been transplanted to several civil law countries such
as France and Italy. Informal version s, based on non-trial set tlement, have been observed
in Germ any, Belgium , the Netherland s, and around the world. e Law and Economics
literature on plea-bargaining views it as an ecient instrument of criminal proce dure
because it reduces enfo rcement costs (for both parties) and allows the prosecutor to
concentrate on more meritorious cases. Yet the success of transplants relies on the existence
of appropriate incentives , and the detailed study of the Italian e xperience provides a good
indication that the traditional inquisitorial system might not generate such incentives .
Instead, this article oers a new theor y emphasizing the role of the prosec utor and that of
the defence counsel. We argue that the incentives of the prosecutor and those of the defence
counsellor are determinants of the success or failure of plea -bargaining. We are sceptical
that plea-bargaining can lead to or is consistent with the desirable outc ome in many
circumstances. In particular, a major implication of our analysis is that the comparative
* We are grateful to two anonymous referees, Oren Gazal-Ayal, Tom Ginsburg , Morag Goodwin, Jon
Klick, L arry Ri bstein, Limor Riza, Just ice Robert S teigmann, Cy rus Tata and seminar par ticipants at
the law sc hools of Illi nois, Chicago and Florida St ate Universities for helpful comment s, and to Lydie
Ancelot for exce llent notes on the French syst em. Yeny C. Es trada h as provid ed excel lent resea rch
assistants hip. e usual discla imer applies.
** Professor of Law, University of I llinois College of Law ; R esearch Professor, IMDEA (Mad rid) &
Research Profes sor of Law, School of Law, e University of Manche ster; ngaroupa@law.uiuc.edu.
*** Professor of R egulation, School of L aw, e University of M anchester; frank.s tephen@manchester.
ac.uk.
Nuno Garoupa and Fra nk H. Stephen
324 15 MJ 3 (2008)
eciency of pl ea-bargaining to a larger extent depends on the possibility of a legal system
to address the multiple princ iple-agent problems in criminal litigation.
Keywords: plea-bargaining; compar ative criminal law; law and economics; prosecutor;
defence counsel; judge
§1. INTRODUCTION
Plea-bargaining is very much a reality outside the United State s. e myth of American
exceptionalism in this matter is cert ainly by now quite untrue. It is now an important
part of crim inal procedure in the United Ki ngdom (with its thre e separate criminal law
jurisdictions of Engla nd & Wales, Scotland and Northern Ireland, all wit h somewhat
dierent versions of plea-bargai ning). Plea-barga ining has a lso been trans planted to
several civil law cou ntries (most notably Fra nce, Italy, Poland, and Argentina), despite
the severe criticism from traditional doctr inal approaches, but apparently without major
empirical success (either in widespread use or in cost reduction).1 In formal versions,
based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands,
and around the world, again generat ing serious opposition.2
e reality is that 95% of all convictions in the US are secured with a guilty plea; guilty
pleas a re widely observed in the UK (more than 90%); but only 8% of all conv ictions
in Italy are obtained by plea-bargaining. 3 It seems to us that these gures conrm the
importance of plea-bargaining in criminal procedure. However, plea-bargaining is rarely
used outside common law countr ies, where criminal procedure is adversarial in nature.
Plea-bargaining is not frequently used in European civil law countries where criminal
procedures are inquisitoria l.4
While the discussion that has emerged as a result of the comparative observations
presupposes the benecial nature of t ransplants in criminal procedu re,5 we prefer to see
1 See e.g., N. Boari, ‘O n the Eciency of Pena l Systems: Severa l Lessons from t he Italian Ex perience’, 17
Int. Rev. of L. and Ec. 115 (1997); N. Boari and G. Fiorentin i, ‘An Economic Anal ysis of Plea Bargaining:
e Incent ives of t he Parties in a Mixed Pena l System’, 21 Int. Rev. of L. and Ec. 213 (2001) (For the
Italian experience, patteggiamento). For the Frenc h case (plaider coupable), we are not aware of any
empirical as sessment so far.
2 It includes summar y procedure s for those who do not contest guilt; unconditiona l and conditional
dismissa ls; confession of gui lt for a reduction in the sentence , warnings and repr imands.
3 One should be careful in comparing numbers, si nce a convict ion secured with a g uilty plea does not
necessari ly imply the forma l use of plea-barga ining. e se numbers are d iscussed i n Boari, ‘On t he
Eciency of Penal Systems: Seve ral Lessons from the Itali an Experience’, and Boari and Fiorenti ni, ‘An
Economic Anal ysis of Plea Bargaini ng: e Incentives of the Par ties in a Mixed Pena l System’.
4 Obviously the lack of succ ess in terms of use depend s, in part, on how we dene ple a-bargaining. I f we
take a broader de nition of plea-bargaining as any form of negotiated sente nce that av oids crimi nal
trial, t hen we might account for half or more of t he convictions in ma ny civil law countrie s.
5 See e.g., J. Herrm ann, ‘Bargaining Just ice: A Ba rgain for German Crimina l Ju stice’, 53 Univers ity
of Pittsburg h L. Rev. 755 (1992); H. Jung, ‘Plea-Bargaining and its Rep ercussions on the eory of
Why Plea-Bargai ning Fails to Achieve R esults in so Many Cri minal Justice Syst ems
15 MJ 3 (2008) 325
it as an indication that the endorsement of plea-bargaining requires a broader assessment.
e success of transplants relies on t he existence of appropriate incentives, 6 and the
detailed study of the Italian exper ience provides a good indication that the traditiona l
inquisitorial system mig ht not generate such incentives .7 A si milar conclusion can be
drawn from the French system.8
e success of plea-bargaining in adversa rial systems is a lso not so clear c ut, unless
we measu re success by the rate of gui lty pleas. In order to understand what we mea n
by succes s in t he widespread use of plea-barga ining in the United States (as genera lly
interpreted by legal economists), we rst should realize that the America n model of plea-
bargaining is quite complex and diverse. It i s not a simple bargain bet ween the accused
and the prosec utor in order to settle for a given sentence in ret urn for a guilt y plea.9 In
Crimina l Procedu re’, 5 E ur. J. of Crime, Criminal Law and Crimin al Justic e 112 (1997); E. Harnon,
‘Plea-Bargain ing in Israel – e Proper Functions of the Pr osecution and the C ourt and the Role of
Victims’, 31 Israel L. Rev. 245 (1997); E. Grande, ‘Itali an Crimina l Justice: Borrow ing and Resist ance’,
48 Am. J. of Comp. L. 227 (2000); Y. Ma, ‘Prosecutorial Discretion and Plea-Bargaining in the Unite d
States, France , Germany, and Italy: A Comparat ive Perspective’, 12 Int. Criminal Jus tice Rev. 22 (2002);
M. Lange r, ‘From Legal Transpla nts to Leg al Translations: e Global ization of Ple a-Bargaining and
the Ame ricanization esis in Criminal Procedure’, 45 Harvard Int. L. J. 1 (2004); J. J. Jackson, ‘e
Eect of Hu man R ights on Crim inal Evidentiary Processes : Towards Convergence, Divergence, or
Realign ment?’, 68 Mod. L. Rev. 737 (2005).
6 See, N. Garoupa and A. Ogus, ‘A Strategic Interpretation of Lega l Transplants’, 35 J. of Legal Studies 339
(2006) (for a general debate).
7 Boari, ‘On the Eciency of Penal Syste ms’, a nd B oari and Fiorentini, ‘An Economic Analy sis of
Plea Bargaining’ identif y severa l problems with the Italian experie nce. To start with, the o bjective
of the transplant was to warrant a pre-trial settlement opportunit y to reduc e delays, not to enh ance
prosecutoria l di scretion as economists usually th ink. On the side of the prosec utor, they identi fy
the fol lowing proble ms: lower concentration of resources because it is usually aer the preli minary
investigation s have ta ken place; applies only to minor oences whic h do not justify an intensive use
of resource s; prosecutors advance t heir careers by seniorit y and not performance. On the si de of the
defendant, it applies to a limited group of defenda nts (minor oences), hence is less attractive to accept;
there are ma ny acquit tals for loss of ev idence or witnesse s and amnestie s grante d regu larly; he nce
delays make it wort hwhile to protract t rials as long as possi ble to avoid jail.
8 e French plea-bargaining system has two stage s: proposal and homologation. e prosecutor makes a
proposal to the accused that ca n be in the form of a ne or an imprisonment sentence. However the deal
must be reviewed by a judge, who can unilaterally reject it. e judge is intended to check the culpability
of the accu sed in relation to t he evidence, t he recognition of g uilt by the acc used, and the legality and
proportional ity of the proposed sentence. If homologation fa ils, the prosecutor must continue t he case.
Plaider cu lpable is regu lated by the Code de Procéd ure Pénale. Most of the echoed c riticism in Fr ench
legal w riting aga inst the introduction of this system add ressed the procedural rights of the accu sed,
the negative cons equences of empowering the pr osecution (the Ministère Pu blic), and the incentives to
avoid trial.
9 See Y. Kamisar e t al., Modern Criminal Proce dure: Cases–C omments–Questi ons (American Casebook
Series, 12t h ed. 20 08). Furthermore, it varies across states. Plea-bargainin g is a negot iated agreement
between prose cution and defence i n the federal sy stem. In some state s, such as New York and Il linois,
bargaini ng is mostly wit h the judge, who imposes due process concerns. For exampl e, in Longley v.
State, 902 So. 2d 925 (Fla D ist. Ct. App. 5th Dis t. 2005), t he Court held that the defenda nt’s right to
due process was violated by the t rial judge’s invo lvement with i nitiating t he plea-bargai ning process.
As a resu lt, more and more states are hesitant to for mally perm it judges to b ecome involved wi th the
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