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From Hodgson, J., 2015. Plea Bargaining: A Comparative Analysis. In: James D. Wright
(editor-in-chief), International Encyclopedia of the Social & Behavioral Sciences,
2nd edition, Vol 18. Oxford: Elsevier. pp. 226–231.
ISBN: 9780080970868
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Plea Bargaining: A Comparative Analysis

Jacqueline Hodgson, University of Warwick, Coventry, UK
Ó 2015 Elsevier Ltd. All rights reserved.
This article is a replacement of the previous edition article by M. Heumann, volume 17, pp. 11507–11513, Ó 2001, Elsevier Ltd.

Abstract

Plea bargaining is a well-established phenomenon in the United States, such that it is regarded even by the Supreme Court as
part of ordinary criminal justice practice, to which Constitutional rights should attach. Various forms of plea and sentence
negotiation procedures also exist across Europe and the desire to minimize the number of fully contested trials appears to be
a universal criminal justice objective. This article explores the types of bargaining in place in a range of jurisdictions. It focuses
in particular on the implications of party-controlled negotiations within more inquisitorial procedures, which are generally
characterized by a proactive and truth-seeking judicial function.

Introduction as maximizing the efficiency of case management procedures.

Plea and sentence bargaining is characterized by several general
features that we might recognize as common across a range of
jurisdictions and procedural traditions. It requires an admission
of guilt from the accused; the accused is offered some reward,
incentive, or advantage, either in exchange for, or as a result of
the plea; and there is some benefit to the criminal justice system
– typically the avoidance of a more lengthy and expensive
contested trial. The point in the criminal process at which these
negotiations are initiated, the personnel involved, and the
relative incentives and benefits available will of course differ. In
some instances, explicit bargains are struck between prosecutor
and defense lawyer; in others, there is direct judicial involve-
ment; and in others, the system benefit may operate as an
implicit reward, without any explicit bargaining taking place.
Growing criminalization coupled with the need to reduce
the cost and delay brought about by increasing caseloads makes
such bargaining an attractive option. The phenomenon of
‘negotiated justice’ is well established and has saturated the US
criminal system, but we now see various forms of bargaining
across the globe. In Europe, for example, in 1987, Recommen-
dation R (87) 18 of the Council of Europe Committee of
Ministers encouraged countries to make use of discretionary
prosecution and the adoption of summary, simplified and out-
of-court procedures for mass and minor offenses, in order to
combat delay and to simplify the workings of criminal justice.
Formal procedures have been introduced in many jurisdictions
(e.g., the conformidad in Spain; the confissão in Portugal; the
composition pénale and the comparution sur reconnaissance préalable
de culpabilité in France), and informal procedures (such as the
German absprachen) have been placed on a statutory footing.
Bargaining exists even in international criminal justice, though
the implications are rather different from those in domestic
procedure (Langer, 2004, 2006). In both the domestic and the
international sphere, the court’s verdict represents an official
truth or history of the case, a formal finding as to guilt. In the
international criminal justice arena, negotiating what will be an
important historical record of events has wider implications for
reconciliation and justice for victims.
These procedures are not about acknowledging the
remorse of the accused, or, arguably, even her guilt, so much
They are less widespread in continental European jurisdic-
tions (they account for around one third of all cases dealt with
by the courts in Italy, for example) but in England and Wales
and the United States, guilty pleas have become the norm,
even the expectation. Some 70% of cases before the courts are
dealt with by way of guilty pleas in the Crown Court in
England and Wales, and 68% in the magistrates’ court (75%
excluding cases that are discontinued at court). In the United
States, around 95% of cases in both state and federal district
courts are disposed of by way of guilty pleas (Figure 1),
causing one commentator to observe: “This system loves
punishment . This system hates trials” (Miller, 2004:
p. 1212). Criminal justice systems are simply not equipped
for a mass of contested trials. The full hearing of a case with
live witnesses, in which the prosecution case is tested and
rules of evidence applied, exists more as a promise or
guarantee. It is the possibility of the trial that shapes the
nature of the parties’ pretrial behavior to some degree.
Understanding Plea Bargaining Comparatively
In Anglo-American systems of criminal justice, the parties are
responsible for the investigation, collection, and presentation
of evidence; the trial judge or the jury will then assess this
evidence, whether written reports or live testimony, in order
to determine the verdict. As untested evidence is brought
directly by the parties, often complex rules of evidence
determine admissibility. With the parties in control of the case
in this way, prosecutors are at liberty to negotiate the evidence
and the charges. For at least four decades, American scholars
have marveled at the relative absence of plea bargaining in
most continental European countries whose procedures are
rooted in the inquisitorial tradition.
Europe is no longer a ‘land without plea bargaining’ (as
Langbein referred to Germany in 1979), but while some form of
plea or sentence bargaining probably now exists in most Euro-
pean countries, the nature and extent of the practice is still very
limited compared with the routinized nature of negotiated
justice in the United States and increasingly in England and
Wales. (For an account of trial avoidance in various jurisdictions,

226 International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 18 http://dx.doi.org/10.1016/B978-0-08-097086-8.86091-2

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Figure 1 (a) Number of pleas vs trials in Federal Courts (federal data);
(b) Number of pleas vs trials in 75 Major County Courts (state data).
Source: Online Sourcebook of Criminal Justice Statistics, located at
http://www.albany.edu/sourcebook/.
see Thaman, 2010.) In particular, the scope of plea bargaining is
very different: plea bargaining is used across the full range of
offenses in Britain and the United States, but in most
inquisitorially rooted procedures, it is limited to less serious
cases. Germany is perhaps the exception to this, where sentence
bargaining practices have developed informally (they were not
regulated by statute until 2009) and so they were free from the
constraints of procedural principles and are applied to both
serious and minor offenses (Weigend, 2008; Rauxloh, 2011).
In inquisitorially rooted systems such as France, Spain, or the
Netherlands, the judge has a strong fact-finding and truth-seeking
role, which is more investigative in nature than the passive and
purely adjudicatory function of the judge within the adversarial
tradition (e.g., in the United States). Inquisitorial procedures
will typically include a pretrial judicial (or at least
prosecutorial) function, in which a judicial officer is responsible
for conducting or overseeing the investigation. This affects the
relationship between trial and pretrial behavior as the
prosecution case is considered the product of a judicial (or
judicially supervised) investigation, rather than a partisan
account to be tested by the defense. The trial of course yields
the public pronouncement of the verdict, but rather than being
the first hearing and testing of the evidence, it is the
confirmation of an earlier set of data-collecting moments. As
a result, the trial in more inquisitorial procedures is typically
shorter, with fewer witnesses, and so is less resource intensive –
it is a trial on the dossier (the case file of evidence), predictably
often confirming the assertions of the ‘judicial’ prosecutor.
It might be presumed, therefore, that in inquisitorial-type
systems there is less pressure toward a guilty plea given the
more perfunctory trial process than exists in adversarial
systems, which have a greater incentive to avoid the lengthy
and complex process of the contested trial. Yet, even without
a formal system of pleas, it is clear that in France, a confession
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Plea Bargaining: A Comparative Analysis 227
is the primary goal of the police investigation despite it being
carried out under the apparent supervision of the public
prosecutor (Hodgson, 2001). Interestingly, some older studies
in the United States have also doubted the extent to which
caseload pressure is the real reason for trial avoidance (Mather,
1979; Schulhofer, 1984). But while the certainty of
a confession is perhaps universally desired by those
responsible for the investigation and prosecution of crime,
greater opportunities to contest the evidence bring yet more
pressure to close down the uncertainty of conflict. It would
seem that the introduction of improved procedural defense
rights immediately triggers the establishment of procedures
through which these rights can be waived. In the 1990s, for
example, when Italy was moving to a more accusatorial
procedure in which written evidence was replaced by oral
evidence at trial, realizing the huge time and resource
implications, the reform retained a simplified ‘trial by dossier’
procedure (see generally, Pizzi and Montagna, 2004;
Illuminati, 2005). It recognized that the adversarial ideal of the
fully contested trial following a plea of not guilty would not be
sustainable in all or even most cases.
Objections to Plea and Sentence Bargaining
At one level, encouraging the guilty accused to admit her guilt
sooner rather than later seems quite logical. Yet, even in theo-
retical terms, the plea and sentence bargaining process might
subvert criminal justice norms in several ways.
Supplanting the Role of the Court
Firstly, the court is no longer the arbiter of fact and judges no
longer enjoy primary responsibility for case disposition. Instead,
the court agrees to an outcome determined by the parties. This
objection might be raised more generally against any system of
guilty pleas, but it is especially problematic when incentives and
rewards are offered. The shift in power from the judge to the
parties poses particular problems in jurisdictions rooted in
inquisitorial procedure, where the court, rather than the parties,
has the primary responsibility for fact-finding.
For example, until relatively recently, France made no formal
distinction between cases where the accused admitted the
offense and those where she did not: cases were simply dealt
with more or less rapidly depending on whether there was an
admission (Hodgson, 2012). In 2004, a form of guilty plea
procedure was introduced, underpinned by a process of
sentence bargaining – the comparution sur reconnaissance
préalable de culpabilité (CRPC). Where the accused has
admitted the charges, the prosecutor can propose a reduced
sentence of up to 1 year or half of the maximum sentence for
the charge. If the defense agrees, the accused will have her
case dealt with by the rapid guilty plea process. The court may
only agree or reject the sentence – she may not adjust it in
any way. It has been argued that this undermines the proper
function of the judge and so the separation of powers.
However, the Constitutional Council has ruled the procedure
to be constitutional: the judge must do more than rubber
stamp the agreement and may reject the plea and sentence if
not supported by the facts, or after taking into account the
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228 Plea Bargaining: A Comparative Analysis
personality of the accused, the situation of the victim, or the
public interest. (The same is true in Italy – the judge may only
accept or reject the sentence proposed, but she is required to
satisfy herself of the voluntariness of the admission and the
evidence against the accused, thus retaining something of
the traditional truth-finding judicial role.) In practice, the
procedure is designed for a speedy resolution and it seems
unlikely that the judge would go beyond the agreement
presented to the court. The procedure has been extended to
virtually all middle-ranking offenses (délits), and while it is
currently applied immediately after the police detention and
questioning of the suspect, it may now also take place at the
close of the judicial investigation (instruction). Its use has
increased each year and now accounts for 15% of all cases
dealt with by the tribunal correctionnel.
The Invisible Exercise of Discretion
Second, in the process of plea and sentence bargaining, in most
instances (Germany is an interesting exception here, where
the defense lawyer negotiates directly with the judge), prosecu-
torial discretion is supreme and is largely invisible to scrutiny.
These are deals behind closed doors, with no record of terms
or reasons. In the United States, as power has shifted to the
prosecutor, she has been given greater power to charge offenses
and so greater bargaining power over charge, plea, and effectively
sentence. Miller and Eisenstein (2005) found that increased
cooperation between state and federal prosecutors, especially
post 9/11, has moved sentencing power away from the judge
to the prosecutor in federal cases. Miller (2004) argues that
increased federal sentencing mandatory provisions, together
with an increase in the range of crimes that are the focus of
federal attention, have increased the power of the prosecutor.
As a result, there are almost no trials taking place in federal
court (the percentage of convictions resulting from guilty pleas
having risen from 87 to 97% between 1991 and 2003), with
the result that the federal prosecutor has become the
federal sentencer. Mandatory sentences have also increased
prosecutorial power in the same way, as the choice of charge
will effectively determine sentence. In England and Wales,
a recent development seeks to regulate the prosecutor’s exercise
of discretion in plea bargaining in serious fraud cases, ensuring
greater fairness, avoiding improper pressure and keeping
records of discussions. However, the disclosure provisions
remain largely within the prosecutor’s discretion, potentially
undermining fairness (see Section Inequalities of Bargaining
Power: Legal Assistance and Disclosure). Nonetheless, Watson
(2010) argues that the guidelines may have a positive impact
on the plea bargaining culture, creating a more formal and
transparent system.
In jurisdictions where the prosecutor is a judicial officer,
there is greater trust in the apparently nonpartisan nature of
the prosecutor and the accused may appear to be more pro-
tected. For example, in France, the procureur is a magistrat along
with the juge d’instruction and the trial judge. She is understood
to act in the public interest, in contrast to the defense lawyer,
who represents the accused in a more partisan way. However,
research shows that in practice, the prosecution function is less
judicial and public interest-centered and more partisan
and prosecution-oriented than might be assumed (Hodgson,
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2001, 2005). As a prosecuting party with hierarchical
accountability to the executive, the European Court of Human
Rights has also questioned the independence and so the
judicial status of the French prosecutor in particular, though
this applies potentially to many other jurisdictions whose
prosecutors share her role and status (Medvedyev v. France
2010, 3394/03; Moulin v. France 2010, 37 104/06).
The public interest orientation of the continental public
prosecutor should not be overplayed, but she does nevertheless
play a different role from her British and American counterparts.
While plea bargains in England and Wales and the United States
might be struck between the prosecution and defense lawyers
before being put to the accused by her own defense counsel for
a plea of guilty to be entered, the French prosecutor’s responsi-
bility for the investigation makes her a more proactive prose-
cutor, engaging directly with the accused. She will first propose
a sentence and then during a short hearing with the accused and
her lawyer, the accused will be asked to confirm that the offense is
admitted. If it is not, the prosecutor will simply remit it for
ordinary trial. If it is, the prosecutor will listen to the defense
mitigation, before proposing a revised, lesser sentence.
The power of the prosecutor as sentence negotiator is stron-
gest where the prosecution function includes making a sentence
recommendation to the court (such as in France) and so can
control the entire case outcome. The prosecutor’s discretion, and
so her power as a negotiator, is weaker where there exists
a judicially structured sentence discount, often framed either
through guidelines or a fixed mandatory discount (though
ironically this may increase her power in charge selection). In
Spain, for example, defendants receive a mandatory one third
sentence discount: there is an incentive, but the incentive itself is
not negotiable. In these cases, the charges remain fixed and it is
only the sentence that alters. More than 60% of cases in Spain are
now dealt with through this procedure. In England and Wales,
the prosecutor makes no sentence recommendation, but the
judge may give an indication of sentence following a guilty plea
(Goodyear [2005] EWCA Crim 888) and legislation provides for
a sentence discount of up to one third. This is not mandatory in
all cases as with Spain, but rather, the discount is greater the
earlier the accused makes an admission. The court is required to
state the sentence reduction applied and there are sentencing
guidelines to structure this and provide a degree of consistency.
In Italy too, where the parties agree the sentence (there is no
charge bargaining), a discount of up to one third is available.
In sentence bargaining, such as that in France, there must be
a clear admission to the offense being prosecuted. In England
and Wales, an admission is not a precondition to the bargaining
process, as it is the charge itself that will be negotiated. What is
needed is a willingness to admit to something. This is built into
the process; when advising the police on what to charge, Crown
Prosecutors will note on the file from the outset the charges to
which they are prepared to accept a plea of guilty. This, of
course, runs the risk of even unconscious overcharging in order
to build in space for later negotiations.
Inequalities of Bargaining Power: Legal Assistance
and Disclosure
Third, equality of bargaining power is essential if the plea or
sentence bargain is to be regarded as fair in any sense. There is
 Author's personal copy
an assumption that bargaining takes place in the shadow of the
trial and the promise it represents, without acknowledging the
inequalities in bargaining power and the risk of a higher penalty
if the right to trial is in fact exercised. There are two particular
difficulties in ensuring that the accused is an equal negotiator in
this process: she requires effective representation and full
disclosure of the prosecution evidence.
The pressures of bureaucratic case management and the
financial disincentives to take cases to trial make effective
legal representation problematic even in adversarial-type
procedures, and researchers have been critical of defense
counsel’s role in pressing accused persons to accept a plea
deal (McConville et al., 1994). This is significant, as the courts
assume defense counsel is a kind of guarantor of the
voluntariness of the defendant’s plea. For example, France
ensured the right of the accused person to consult with
a lawyer during the CRPC procedure.
Yet, despite their reliance on lawyers in this way, historically
the judiciary has ignored the realities of plea bargaining and
engaged in what Bibas (2011: p. 1119) describes as
“anachronistic formalism focused on jury trials.” The courts in
England and Wales are also extremely reluctant to look
behind a guilty plea and in particular to criticize legal advice
on plea. In the United States, Bibas (2011) argues that Padilla
v. Kentucky 130 S. Ct. 1473 (2010), in which the Supreme
Court held that defective advice as to the collateral
consequences of a guilty plea (here, deportation) could
violate the defendant’s Sixth Amendment guarantee of
effective legal assistance, signals a shift toward acknowledging
guilty pleas as the norm. Furthermore, it recognizes that ‘plea
bargaining needs tailored regulation in its own right, not
simply a series of waivers of trial rights’ (Bibas, 2011:
p. 1138). The subsequent cases of Lafler v. Cooper 132 S. Ct.
1376 (2012) and Missouri v. Frye 132 S. Ct. 1399 (2012) have
set this out more explicitly: the accused was prejudiced by
counsel’s failures during the plea bargaining process and
the court ordered new trials. Justice Kennedy, writing for the
majority, stated that plea bargaining is the norm of the
criminal justice system, therefore 6th Amendment guarantees
must apply there too, as well as during trials. Alschuler (2013)
is skeptical of the significance of these two decisions, arguing
that they will neither remove the temptation for lawyers to
disregard their client’s best interests, nor ensure effective legal
assistance. Plea bargaining remains private and cases such as
these two rely on defense counsel being forthcoming about
their own unprofessional behavior.
The problem of legal assistance is more acute in many
inquisitorially rooted procedures, where there is a less estab-
lished defense role given the historic reliance on, and trust of,
judicial investigations. In France, the defense had almost no
role in the pretrial investigation until recently, and even now it
is severely limited: the suspect may have a 30 min consultation
with her lawyer and the lawyer may be present during the
police interrogation but may not intervene or ask any ques-
tions until the questioning has finished. The lawyer is told only
the basic reasons for arrest and detention. Placing the lawyer in
a direct dialogue with the prosecutor during the CRPC proce-
dure was therefore a new development and nearly a decade on,
the procedure seems to work effectively. The prosecutor
proposes the sentence, the defense lawyer points out
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Plea Bargaining: A Comparative Analysis 229
weaknesses in the case and mitigates for the accused, usually
resulting in the prosecutor further reducing the sentence offer.
If there is to be equality of bargaining and if guilty pleas are
to be fair and not simply a way of enabling poor investigations
to go unchecked, the accused needs to know the nature of the
evidence against her. In all jurisdictions, disclosure at or before
the first hearing will typically be a summary of the evidence
together with the written statements of the key witnesses,
though the stage and the extent of disclosure differ. For
example, in France and the Netherlands, lawyers are relative
newcomers to the police station environment and are told very
little about the accusation during the detention and interroga-
tion of the suspect. Lawyers in England and Wales have been
present at this stage in the process for nearly 30 years. Rela-
tionships of trust have been built and the defense role has
become more accepted. Lawyers are therefore told much more
of the evidence against the suspect, allowing the defense to
begin to structure the defense case at this early stage, including
the offenses to which the accused should and should not plead
guilty. In sentence bargaining such as the plea system in France,
the essence of the bargain is that the accused accepts the facts as
presented: this is a necessary precondition to the abbreviated
procedure. In plea bargaining cases, however, such as in the
United States and England and Wales, the prosecutor may also
engage in fact bargaining, agreeing to adjust the agreed facts, by,
for example, putting in evidence to the court that the victim was
slapped but not punched. This bargaining requires a degree of
trust between defense and prosecution, as there is no opportu-
nity to test out the evidence gathered by the police. It is not clear
that this trust is well-founded. The prosecutor has no
involvement in the investigation and will often have no more
idea of the nature or reliability of the evidence than the
defense. This is true even in systems where the prosecutor is
responsible for the investigation (such as France and the
Netherlands) as supervision is, at best, by telephone and file
review (Hodgson, 2001, 2005).
Disposing of Cases Earlier in the Criminal Process
Plea and sentence bargaining sit within a wider trend toward
the earlier and more rapid disposition of cases. From
abbreviated trials to penalties administered by prosecutors
and even police officers, legal systems have developed an
array of measures that limit the number of cases coming
before the court. (See, for example, the French composition
pénale, in which the prosecutor proposes measures similar to
court penalties; the Italian patteggiamento, in which the
accused agrees a penalty reduction with the prosecutor,
reviewed by the judge and giudizio abbreviato or abbreviated
trial where the penalty is reduced in exchange for an abbre-
viated trial on the dossier; and the German strafpro-
zessordnung, which enables prosecution to be avoided in
exchange for the defendant paying money to the victim,
a charity, or the state.) As guilty pleas and alternatives to
prosecution become the norm, the focus shifts not just to
obtaining an admission, but rather to obtaining an admis-
sion as early as possible in the process. In England and
Wales, out-of-court disposals peaked in 2007 when they
outnumbered those cases disposed of at court, though they
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230 Plea Bargaining: A Comparative Analysis
have slowly declined since then (see Hodgson and Roberts,
2010). The inequalities of defense representation and
evidence disclosure are greater the earlier in the process
that the deal is struck.
Prosecution discretion is also stronger when bargaining takes
place as an alternative to prosecution. The Netherlands, for
example, has a target of disposing of 80% of cases at the police
investigation stage, avoiding prosecution. This is tolerated in
inquisitorially rooted procedures, because of the trust in the
apparent public-interest orientation of the public prosecutor.
However, even where the prosecutor is responsible for the
investigation in countries such as France and the Netherlands,
they will know little of the detail and strength of the evidence:
it is unlikely that the police interrogation of the suspect will
have been heard, or closed circuit television (CCTV) evidence
viewed. Disposing of cases ever earlier in the process means
that both defense and prosecution case knowledge is
incomplete and the inequalities of bargaining power are
therefore weaker.
Where suspects receive deal offers while in police custody or
at the first court appearance, in many jurisdictions they will
most likely be represented by a duty lawyer who has little or no
knowledge of the accused or her case, placing them in a poor
position to negotiate. Recent research on the organization and
delivery of custodial legal advice shows that arrangements vary
across jurisdictions (Blackstock et al., 2014). In England and
Wales, custodial legal advice has been in place on a statutory
footing since 1984 and is supported by a publically funded
legal aid scheme. Duty lawyers are available but suspects may
also select their own lawyer, and in most instances, the same
lawyer (or at least the same firm) will go on to represent them
at court.
This is very different from France and the Netherlands,
where most suspects will be seen by one duty lawyer at the
police station and a different attorney in court. In this way,
legal assistance during police detention and interrogation is
a discrete transaction, rather than part of a continuous
engagement with the defense case. This has important conse-
quences for the defense’s ability to assess the strength of the
prosecution case. For example, the prosecution will typically
disclose a summary of the suspect’s interrogation by the
police. If the lawyer in court was not present at this interro-
gation, she cannot independently judge the accuracy of this
summary – which is of concern, because the summary is
prepared by police staff and tends to reflect the police
interpretation of events, minimizing mitigation or
exculpatory comments. In France, the defense may only view
the video recording of the interrogation (used in juvenile
cases) if the summary is disputed. But as the lawyer at court
is unlikely to be the same attorney present during the
interrogation, she will have no personal knowledge of the
case beyond what the accused is able to tell her.
The quality of legal representation is also variable. In
countries where custodial legal advice has recently been intro-
duced or strengthened (largely as a result of the European Court
of Human Rights case Salduz v. Turkey, 2008), duty rotas are
staffed by lawyers with little or no criminal law experience in
order to spread the workload – and in some instances to enable
lawyers to build up a criminal practice. This replicates in part
what happened in England and Wales in the early years
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following the introduction of the statutory right to custodial
legal assistance: lawyers could not accommodate the
additional workload and relied on inexperienced and
unqualified staff (McConville and Hodgson, 1993). Suspects
are the losers in this – the courts deal with them as though
they have received effective legal assistance, when in fact they
have not. As a result, accused persons are prevented from
challenging evidence in court, as the presence of a defense
lawyer is deemed to be adequate protection and a guarantee
of procedural fairness.
Is Plea Bargaining Typical of Adversarial Procedure?
Plea bargaining is more predominant in adversarial procedures
and scholars in both the United States and Britain have argued
that it subverts the adversarial process: it removes cases from
trial and so prevents the defendant from testing out the prose-
cution case. If the prosecution is not required to discharge the
burden of proof in a public courtroom, this leaves space for
weak cases to go unchecked and the adversarial ideal is
undercut. Research suggests that this is precisely what does
happen. Prosecutors file weak cases, in the knowledge that the
vast majority will result in a guilty plea. Incentives and
inducements can only accentuate this.
On the other hand, where plea and sentence bargaining has
been introduced elsewhere, it is regarded as a more adversarial
practice that undercuts and even subverts inquisitorial ideals
and procedures. The essence of plea and sentence bargaining is
that it is party centered – the plea and sometimes sentence is
determined by the prosecution and defense, not by the
court. As inquisitorially rooted procedures traditionally have
a more active judicial role at trial – questioning witnesses
and interrogating the evidence – passing the finding of guilt
and the sentence to be imposed into the hands of the parties
can be seen as deviating from the inquisitorial tradition and
the truth-finding role of the judge. This was the problem
raised in the introduction of the French guilty plea
procedure. In Italy too, initial attempts at the introduction of
an adversarial procedure in 1988 were resisted strongly by
the judiciary and required constitutional change. Legal
cultures are slower to adapt, and the idea of negotiated
justice with contractual-type relationships does not sit well
with the traditional public-interest-oriented Italian judicial
role (Maffei, 2004).
Whatever the procedure within which bargaining takes
place, it requires the accused to waive her trial rights and so the
opportunity to test out the accusation against her. What does
she receive in return? Is it a bargain, a lesser punishment than
she deserves, as Justice Scalia claimed in Lafler? This certainly
seems unlikely in the United States, where the “expected post-
trial sentence is . like the sticker price for cars: only an
ignorant, ill-advised consumer would view the full price as
the norm and anything less a bargain” (Justice Kennedy in
Lafler, quoting Bibas, 2011: p. 1138). In inquisitorial-type
systems, bargaining is less widespread and not yet
institutionalized to the extent of systematic overcharging.
The more active judicial and prosecutorial functions also
appear to guard against the worst excesses of purely
negotiated justice, for the time being at least.
 Author's personal copy
See also: Crime Policy in the United States; Policing;
Prosecution; Punishment: Social and Legal Aspects; Trials.
Bibliography
Alschuler, A.W., 2013. Lafler and Frye: two small band-aids for a festering wound.
Duquesne University Law Review 51, 673–707.
Bibas, S., 2011. Regulating the plea bargaining market: from Caveat Emptor to
consumer protection. California Law Review 99 (4), 1117–1161.
Blackstock, J., Cape, E., Hodgson, J., Ogorodova, A., Spronken, T., 2014. Inside Police
Custody. Intersentia, Antwerp.
Hodgson, J., 2001. The police, the prosecutor and the juge d’instruction: judicial super-
vision in France, theory and practice. British Journal of Criminology 41 (2), 342–361.
Hodgson, J., 2005. French Criminal Justice: A Comparative Account of the Investigation
and Prosecution of Crime in France. Hart Publishing, Oxford.
Hodgson, J., 2012. Guilty pleas and the changing role of the prosecutor in French
criminal justice. In: Luna, E., Wade, M. (Eds.), The Prosecutor in Transnational
Perspective. Oxford University Press, Oxford, pp. 116–134.
Hodgson, J., Roberts, A., 2010. Criminal process and prosecution. In: Cane, P.,
Kritzer, B. (Eds.), Oxford Handbook of Empirical Legal Studies. Oxford University
Press, Oxford.
Illuminati, G., 2005. The frustrated turn to adversarial procedure in Italy. Washington
University Global Studies Law Review 4 (3), 567–581.
Langer, M., 2004. From legal transplants to legal translations: the globalization of plea
bargaining and the Americanization thesis in criminal procedure. Harvard Interna-
tional Law Journal 45 (1), 1–64.
International Encyclopedia
Electronic of the Socialat:
copy available & Behavioral Sciences, Second Edition, 2015, 226–231
https://ssrn.com/abstract=2366847
Plea Bargaining: A Comparative Analysis 231
Langer, M., 2006. Rethinking plea bargaining: the practice and reform of prosecutorial
adjudication in American criminal procedure. American Journal of Criminal Law
34, 223.
Maffei, S., 2004. Negotiations ‘on evidence’ and ‘on sentence’ – adversarial
experiments in Italian criminal procedure. Journal of International Criminal Justice
2 (4), 1050–1069.
Mather, L.M., 1979. Plea-Bargaining or Trial: The Process of Criminal-Case Disposition.
McConville, M., Hodgson, J., 1993. Custodial Legal Advice and the Right to Silence.
HMSO, London.
McConville, M., Hodgson, J., Bridges, L., Pavlovic, A., 1994. Standing Accused: The
Organisation and Practices of Criminal Defence Lawyers in Britain. Clarendon Press,
Oxford.
Miller, L.L., Eisenstein, J., 2005. The Federal/state criminal prosecution nexus: a case
study in cooperation and discretion. Law & Social Inquiry 30, 239–268.
Miller, M.L., 2004. Domination & dissatisfaction: prosecutors as sentencers. Stanford
Law Review 56, 1211.
Pizzi, W.T., Montagna, M., 2004. The battle to establish an adversarial trial system in
Italy. Michigan Journal of International Law 25, 429–466.
Rauxloh, R., 2011. Formalization of plea bargaining in Germany: will the new legislation
be able to square the circle? Fordham International Law Journal 34 (2), 296–331.
Schulhofer, S.J., 1984. Is plea bargaining inevitable? Harvard Law Review 97, 1037.
Thaman, S. (Ed.), 2010. World Plea Bargaining: Consensual Procedures and the
Avoidance of the Full Criminal Trial. North Carolina Academic Press, Durham.
Watson, D., 2010. The attorney general’s guidelines on plea bargaining in serious fraud:
obtaining guilty pleas fairly? Journal of Criminal Law 74 (1), 77–90.
Weigend, T., 2008. The decay of the inquisitorial ideal: plea bargaining invades German
criminal procedure. In: Jackson, J., Langer, M., Tillers, P. (Eds.), Crime, Procedure
and Evidence in a Comparative and International Context. Hart Publishing, Oxford,
pp. 39–64.