Why Plea-Bargaining Fails to Achieve Results in So Many Criminal Justice Systems: A New Framework for Assessment

Abstract

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. In addition to forming 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 versions, based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands, and around the world. The Law and Economics literature on plea-bargaining views it as an efficient instrument of criminal procedure because it reduces enforcement 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 experience provides a good indication that the traditional inquisitorial system might not generate such incentives. Instead, this article offers a new theory emphasizing the role of the prosecutor 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 outcome in many circumstances. In particular, a major implication of our analysis is that the comparative efficiency of plea-bargaining to a larger extent depends on the possibility of a legal system to address the multiple principle-agent problems in criminal litigation.