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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
Copyright © 2015 Elsevier Ltd. unless otherwise stated. All rights reserved.
Elsevier

Electronic copy available at: https://ssrn.com/abstract=2366847

 Author's personal copy

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.

They are less widespread in continental European jurisdic-
Plea and sentence bargaining is characterized by several general tions (they account for around one third of all cases dealt with
features that we might recognize as common across a range of by the courts in Italy, for example) but in England and Wales
jurisdictions and procedural traditions. It requires an admission and the United States, guilty pleas have become the norm,
of guilt from the accused; the accused is offered some reward, even the expectation. Some 70% of cases before the courts are
incentive, or advantage, either in exchange for, or as a result of dealt with by way of guilty pleas in the Crown Court in
the plea; and there is some benefit to the criminal justice system England and Wales, and 68% in the magistrates’ court (75%
– typically the avoidance of a more lengthy and expensive excluding cases that are discontinued at court). In the United
contested trial. The point in the criminal process at which these States, around 95% of cases in both state and federal district
negotiations are initiated, the personnel involved, and the courts are disposed of by way of guilty pleas (Figure 1),
relative incentives and benefits available will of course differ. In causing one commentator to observe: “This system loves
some instances, explicit bargains are struck between prosecutor punishment . This system hates trials” (Miller, 2004:
and defense lawyer; in others, there is direct judicial involve- p. 1212). Criminal justice systems are simply not equipped
ment; and in others, the system benefit may operate as an for a mass of contested trials. The full hearing of a case with
implicit reward, without any explicit bargaining taking place. live witnesses, in which the prosecution case is tested and
Growing criminalization coupled with the need to reduce rules of evidence applied, exists more as a promise or
the cost and delay brought about by increasing caseloads makes guarantee. It is the possibility of the trial that shapes the
such bargaining an attractive option. The phenomenon of nature of the parties’ pretrial behavior to some degree.
‘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- Understanding Plea Bargaining Comparatively
dation R (87) 18 of the Council of Europe Committee of
Ministers encouraged countries to make use of discretionary In Anglo-American systems of criminal justice, the parties are
prosecution and the adoption of summary, simplified and out- responsible for the investigation, collection, and presentation
of-court procedures for mass and minor offenses, in order to of evidence; the trial judge or the jury will then assess this
combat delay and to simplify the workings of criminal justice. evidence, whether written reports or live testimony, in order
Formal procedures have been introduced in many jurisdictions to determine the verdict. As untested evidence is brought
(e.g., the conformidad in Spain; the confissão in Portugal; the directly by the parties, often complex rules of evidence
composition pénale and the comparution sur reconnaissance préalable determine admissibility. With the parties in control of the case
de culpabilité in France), and informal procedures (such as the in this way, prosecutors are at liberty to negotiate the evidence
German absprachen) have been placed on a statutory footing. and the charges. For at least four decades, American scholars
Bargaining exists even in international criminal justice, though have marveled at the relative absence of plea bargaining in
the implications are rather different from those in domestic most continental European countries whose procedures are
procedure (Langer, 2004, 2006). In both the domestic and the rooted in the inquisitorial tradition.
international sphere, the court’s verdict represents an official Europe is no longer a ‘land without plea bargaining’ (as
truth or history of the case, a formal finding as to guilt. In the Langbein referred to Germany in 1979), but while some form of
international criminal justice arena, negotiating what will be an plea or sentence bargaining probably now exists in most Euro-
important historical record of events has wider implications for pean countries, the nature and extent of the practice is still very
reconciliation and justice for victims. limited compared with the routinized nature of negotiated
These procedures are not about acknowledging the justice in the United States and increasingly in England and
remorse of the accused, or, arguably, even her guilt, so much 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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Electronic copy available at: https://ssrn.com/abstract=2366847
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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.
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/.
Objections to Plea and Sentence Bargaining

At one level, encouraging the guilty accused to admit her guilt

see Thaman, 2010.) In particular, the scope of plea bargaining is sooner rather than later seems quite logical. Yet, even in theo-
very different: plea bargaining is used across the full range of retical terms, the plea and sentence bargaining process might
offenses in Britain and the United States, but in most subvert criminal justice norms in several ways.
inquisitorially rooted procedures, it is limited to less serious
cases. Germany is perhaps the exception to this, where sentence
Supplanting the Role of the Court
bargaining practices have developed informally (they were not
regulated by statute until 2009) and so they were free from the Firstly, the court is no longer the arbiter of fact and judges no
constraints of procedural principles and are applied to both longer enjoy primary responsibility for case disposition. Instead,
serious and minor offenses (Weigend, 2008; Rauxloh, 2011). the court agrees to an outcome determined by the parties. This
In inquisitorially rooted systems such as France, Spain, or the objection might be raised more generally against any system of
Netherlands, the judge has a strong fact-finding and truth-seeking guilty pleas, but it is especially problematic when incentives and
role, which is more investigative in nature than the passive and rewards are offered. The shift in power from the judge to the
purely adjudicatory function of the judge within the adversarial parties poses particular problems in jurisdictions rooted in
tradition (e.g., in the United States). Inquisitorial procedures inquisitorial procedure, where the court, rather than the parties,
will typically include a pretrial judicial (or at least has the primary responsibility for fact-finding.
prosecutorial) function, in which a judicial officer is responsible For example, until relatively recently, France made no formal
for conducting or overseeing the investigation. This affects the distinction between cases where the accused admitted the
relationship between trial and pretrial behavior as the offense and those where she did not: cases were simply dealt
prosecution case is considered the product of a judicial (or with more or less rapidly depending on whether there was an
judicially supervised) investigation, rather than a partisan admission (Hodgson, 2012). In 2004, a form of guilty plea
account to be tested by the defense. The trial of course yields procedure was introduced, underpinned by a process of
the public pronouncement of the verdict, but rather than being sentence bargaining – the comparution sur reconnaissance
the first hearing and testing of the evidence, it is the préalable de culpabilité (CRPC). Where the accused has
confirmation of an earlier set of data-collecting moments. As admitted the charges, the prosecutor can propose a reduced
a result, the trial in more inquisitorial procedures is typically sentence of up to 1 year or half of the maximum sentence for
shorter, with fewer witnesses, and so is less resource intensive – the charge. If the defense agrees, the accused will have her
it is a trial on the dossier (the case file of evidence), predictably case dealt with by the rapid guilty plea process. The court may
often confirming the assertions of the ‘judicial’ prosecutor. only agree or reject the sentence – she may not adjust it in
It might be presumed, therefore, that in inquisitorial-type any way. It has been argued that this undermines the proper
systems there is less pressure toward a guilty plea given the function of the judge and so the separation of powers.
more perfunctory trial process than exists in adversarial However, the Constitutional Council has ruled the procedure
systems, which have a greater incentive to avoid the lengthy to be constitutional: the judge must do more than rubber
and complex process of the contested trial. Yet, even without stamp the agreement and may reject the plea and sentence if
a formal system of pleas, it is clear that in France, a confession 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 2001, 2005). As a prosecuting party with hierarchical
public interest. (The same is true in Italy – the judge may only accountability to the executive, the European Court of Human
accept or reject the sentence proposed, but she is required to Rights has also questioned the independence and so the
satisfy herself of the voluntariness of the admission and the judicial status of the French prosecutor in particular, though
evidence against the accused, thus retaining something of this applies potentially to many other jurisdictions whose
the traditional truth-finding judicial role.) In practice, the prosecutors share her role and status (Medvedyev v. France
procedure is designed for a speedy resolution and it seems 2010, 3394/03; Moulin v. France 2010, 37 104/06).
unlikely that the judge would go beyond the agreement The public interest orientation of the continental public
presented to the court. The procedure has been extended to prosecutor should not be overplayed, but she does nevertheless
virtually all middle-ranking offenses (délits), and while it is play a different role from her British and American counterparts.
currently applied immediately after the police detention and While plea bargains in England and Wales and the United States
questioning of the suspect, it may now also take place at the might be struck between the prosecution and defense lawyers
close of the judicial investigation (instruction). Its use has before being put to the accused by her own defense counsel for
increased each year and now accounts for 15% of all cases a plea of guilty to be entered, the French prosecutor’s responsi-
dealt with by the tribunal correctionnel. 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
The Invisible Exercise of Discretion
her lawyer, the accused will be asked to confirm that the offense is
Second, in the process of plea and sentence bargaining, in most admitted. If it is not, the prosecutor will simply remit it for
instances (Germany is an interesting exception here, where ordinary trial. If it is, the prosecutor will listen to the defense
the defense lawyer negotiates directly with the judge), prosecu- mitigation, before proposing a revised, lesser sentence.
torial discretion is supreme and is largely invisible to scrutiny. The power of the prosecutor as sentence negotiator is stron-
These are deals behind closed doors, with no record of terms gest where the prosecution function includes making a sentence
or reasons. In the United States, as power has shifted to the recommendation to the court (such as in France) and so can
prosecutor, she has been given greater power to charge offenses control the entire case outcome. The prosecutor’s discretion, and
and so greater bargaining power over charge, plea, and effectively so her power as a negotiator, is weaker where there exists
sentence. Miller and Eisenstein (2005) found that increased a judicially structured sentence discount, often framed either
cooperation between state and federal prosecutors, especially through guidelines or a fixed mandatory discount (though
post 9/11, has moved sentencing power away from the judge ironically this may increase her power in charge selection). In
to the prosecutor in federal cases. Miller (2004) argues that Spain, for example, defendants receive a mandatory one third
increased federal sentencing mandatory provisions, together sentence discount: there is an incentive, but the incentive itself is
with an increase in the range of crimes that are the focus of not negotiable. In these cases, the charges remain fixed and it is
federal attention, have increased the power of the prosecutor. only the sentence that alters. More than 60% of cases in Spain are
As a result, there are almost no trials taking place in federal now dealt with through this procedure. In England and Wales,
court (the percentage of convictions resulting from guilty pleas the prosecutor makes no sentence recommendation, but the
having risen from 87 to 97% between 1991 and 2003), with judge may give an indication of sentence following a guilty plea
the result that the federal prosecutor has become the (Goodyear [2005] EWCA Crim 888) and legislation provides for
federal sentencer. Mandatory sentences have also increased a sentence discount of up to one third. This is not mandatory in
prosecutorial power in the same way, as the choice of charge all cases as with Spain, but rather, the discount is greater the
will effectively determine sentence. In England and Wales, earlier the accused makes an admission. The court is required to
a recent development seeks to regulate the prosecutor’s exercise state the sentence reduction applied and there are sentencing
of discretion in plea bargaining in serious fraud cases, ensuring guidelines to structure this and provide a degree of consistency.
greater fairness, avoiding improper pressure and keeping In Italy too, where the parties agree the sentence (there is no
records of discussions. However, the disclosure provisions charge bargaining), a discount of up to one third is available.
remain largely within the prosecutor’s discretion, potentially In sentence bargaining, such as that in France, there must be
undermining fairness (see Section Inequalities of Bargaining a clear admission to the offense being prosecuted. In England
Power: Legal Assistance and Disclosure). Nonetheless, Watson and Wales, an admission is not a precondition to the bargaining
(2010) argues that the guidelines may have a positive impact process, as it is the charge itself that will be negotiated. What is
on the plea bargaining culture, creating a more formal and needed is a willingness to admit to something. This is built into
transparent system. the process; when advising the police on what to charge, Crown
In jurisdictions where the prosecutor is a judicial officer, Prosecutors will note on the file from the outset the charges to
there is greater trust in the apparently nonpartisan nature of which they are prepared to accept a plea of guilty. This, of
the prosecutor and the accused may appear to be more pro- course, runs the risk of even unconscious overcharging in order
tected. For example, in France, the procureur is a magistrat along to build in space for later negotiations.
with the juge d’instruction and the trial judge. She is understood
to act in the public interest, in contrast to the defense lawyer,
Inequalities of Bargaining Power: Legal Assistance
who represents the accused in a more partisan way. However,
and Disclosure
research shows that in practice, the prosecution function is less
judicial and public interest-centered and more partisan Third, equality of bargaining power is essential if the plea or
and prosecution-oriented than might be assumed (Hodgson, sentence bargain is to be regarded as fair in any sense. There is

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 226–231
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Plea Bargaining: A Comparative Analysis 229

an assumption that bargaining takes place in the shadow of the weaknesses in the case and mitigates for the accused, usually
trial and the promise it represents, without acknowledging the resulting in the prosecutor further reducing the sentence offer.
inequalities in bargaining power and the risk of a higher penalty If there is to be equality of bargaining and if guilty pleas are
if the right to trial is in fact exercised. There are two particular to be fair and not simply a way of enabling poor investigations
difficulties in ensuring that the accused is an equal negotiator in to go unchecked, the accused needs to know the nature of the
this process: she requires effective representation and full evidence against her. In all jurisdictions, disclosure at or before
disclosure of the prosecution evidence. the first hearing will typically be a summary of the evidence
The pressures of bureaucratic case management and the together with the written statements of the key witnesses,
financial disincentives to take cases to trial make effective though the stage and the extent of disclosure differ. For
legal representation problematic even in adversarial-type example, in France and the Netherlands, lawyers are relative
procedures, and researchers have been critical of defense newcomers to the police station environment and are told very
counsel’s role in pressing accused persons to accept a plea little about the accusation during the detention and interroga-
deal (McConville et al., 1994). This is significant, as the courts tion of the suspect. Lawyers in England and Wales have been
assume defense counsel is a kind of guarantor of the present at this stage in the process for nearly 30 years. Rela-
voluntariness of the defendant’s plea. For example, France tionships of trust have been built and the defense role has
ensured the right of the accused person to consult with become more accepted. Lawyers are therefore told much more
a lawyer during the CRPC procedure. of the evidence against the suspect, allowing the defense to
Yet, despite their reliance on lawyers in this way, historically begin to structure the defense case at this early stage, including
the judiciary has ignored the realities of plea bargaining and the offenses to which the accused should and should not plead
engaged in what Bibas (2011: p. 1119) describes as guilty. In sentence bargaining such as the plea system in France,
“anachronistic formalism focused on jury trials.” The courts in the essence of the bargain is that the accused accepts the facts as
England and Wales are also extremely reluctant to look presented: this is a necessary precondition to the abbreviated
behind a guilty plea and in particular to criticize legal advice procedure. In plea bargaining cases, however, such as in the
on plea. In the United States, Bibas (2011) argues that Padilla United States and England and Wales, the prosecutor may also
v. Kentucky 130 S. Ct. 1473 (2010), in which the Supreme engage in fact bargaining, agreeing to adjust the agreed facts, by,
Court held that defective advice as to the collateral for example, putting in evidence to the court that the victim was
consequences of a guilty plea (here, deportation) could slapped but not punched. This bargaining requires a degree of
violate the defendant’s Sixth Amendment guarantee of trust between defense and prosecution, as there is no opportu-
effective legal assistance, signals a shift toward acknowledging nity to test out the evidence gathered by the police. It is not clear
guilty pleas as the norm. Furthermore, it recognizes that ‘plea that this trust is well-founded. The prosecutor has no
bargaining needs tailored regulation in its own right, not involvement in the investigation and will often have no more
simply a series of waivers of trial rights’ (Bibas, 2011: idea of the nature or reliability of the evidence than the
p. 1138). The subsequent cases of Lafler v. Cooper 132 S. Ct. defense. This is true even in systems where the prosecutor is
1376 (2012) and Missouri v. Frye 132 S. Ct. 1399 (2012) have responsible for the investigation (such as France and the
set this out more explicitly: the accused was prejudiced by Netherlands) as supervision is, at best, by telephone and file
counsel’s failures during the plea bargaining process and review (Hodgson, 2001, 2005).
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 Disposing of Cases Earlier in the Criminal Process
must apply there too, as well as during trials. Alschuler (2013)
is skeptical of the significance of these two decisions, arguing Plea and sentence bargaining sit within a wider trend toward
that they will neither remove the temptation for lawyers to the earlier and more rapid disposition of cases. From
disregard their client’s best interests, nor ensure effective legal abbreviated trials to penalties administered by prosecutors
assistance. Plea bargaining remains private and cases such as and even police officers, legal systems have developed an
these two rely on defense counsel being forthcoming about array of measures that limit the number of cases coming
their own unprofessional behavior. before the court. (See, for example, the French composition
The problem of legal assistance is more acute in many pénale, in which the prosecutor proposes measures similar to
inquisitorially rooted procedures, where there is a less estab- court penalties; the Italian patteggiamento, in which the
lished defense role given the historic reliance on, and trust of, accused agrees a penalty reduction with the prosecutor,
judicial investigations. In France, the defense had almost no reviewed by the judge and giudizio abbreviato or abbreviated
role in the pretrial investigation until recently, and even now it trial where the penalty is reduced in exchange for an abbre-
is severely limited: the suspect may have a 30 min consultation viated trial on the dossier; and the German strafpro-
with her lawyer and the lawyer may be present during the zessordnung, which enables prosecution to be avoided in
police interrogation but may not intervene or ask any ques- exchange for the defendant paying money to the victim,
tions until the questioning has finished. The lawyer is told only a charity, or the state.) As guilty pleas and alternatives to
the basic reasons for arrest and detention. Placing the lawyer in prosecution become the norm, the focus shifts not just to
a direct dialogue with the prosecutor during the CRPC proce- obtaining an admission, but rather to obtaining an admis-
dure was therefore a new development and nearly a decade on, sion as early as possible in the process. In England and
the procedure seems to work effectively. The prosecutor Wales, out-of-court disposals peaked in 2007 when they
proposes the sentence, the defense lawyer points out outnumbered those cases disposed of at court, though they

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 226–231
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230 Plea Bargaining: A Comparative Analysis

have slowly declined since then (see Hodgson and Roberts, following the introduction of the statutory right to custodial
2010). The inequalities of defense representation and legal assistance: lawyers could not accommodate the
evidence disclosure are greater the earlier in the process additional workload and relied on inexperienced and
that the deal is struck. unqualified staff (McConville and Hodgson, 1993). Suspects
Prosecution discretion is also stronger when bargaining takes are the losers in this – the courts deal with them as though
place as an alternative to prosecution. The Netherlands, for they have received effective legal assistance, when in fact they
example, has a target of disposing of 80% of cases at the police have not. As a result, accused persons are prevented from
investigation stage, avoiding prosecution. This is tolerated in challenging evidence in court, as the presence of a defense
inquisitorially rooted procedures, because of the trust in the lawyer is deemed to be adequate protection and a guarantee
apparent public-interest orientation of the public prosecutor. of procedural fairness.
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: Is Plea Bargaining Typical of Adversarial Procedure?
it is unlikely that the police interrogation of the suspect will
have been heard, or closed circuit television (CCTV) evidence Plea bargaining is more predominant in adversarial procedures
viewed. Disposing of cases ever earlier in the process means and scholars in both the United States and Britain have argued
that both defense and prosecution case knowledge is that it subverts the adversarial process: it removes cases from
incomplete and the inequalities of bargaining power are trial and so prevents the defendant from testing out the prose-
therefore weaker. cution case. If the prosecution is not required to discharge the
Where suspects receive deal offers while in police custody or burden of proof in a public courtroom, this leaves space for
at the first court appearance, in many jurisdictions they will weak cases to go unchecked and the adversarial ideal is
most likely be represented by a duty lawyer who has little or no undercut. Research suggests that this is precisely what does
knowledge of the accused or her case, placing them in a poor happen. Prosecutors file weak cases, in the knowledge that the
position to negotiate. Recent research on the organization and vast majority will result in a guilty plea. Incentives and
delivery of custodial legal advice shows that arrangements vary inducements can only accentuate this.
across jurisdictions (Blackstock et al., 2014). In England and On the other hand, where plea and sentence bargaining has
Wales, custodial legal advice has been in place on a statutory been introduced elsewhere, it is regarded as a more adversarial
footing since 1984 and is supported by a publically funded practice that undercuts and even subverts inquisitorial ideals
legal aid scheme. Duty lawyers are available but suspects may and procedures. The essence of plea and sentence bargaining is
also select their own lawyer, and in most instances, the same that it is party centered – the plea and sometimes sentence is
lawyer (or at least the same firm) will go on to represent them determined by the prosecution and defense, not by the
at court. court. As inquisitorially rooted procedures traditionally have
This is very different from France and the Netherlands, a more active judicial role at trial – questioning witnesses
where most suspects will be seen by one duty lawyer at the and interrogating the evidence – passing the finding of guilt
police station and a different attorney in court. In this way, and the sentence to be imposed into the hands of the parties
legal assistance during police detention and interrogation is can be seen as deviating from the inquisitorial tradition and
a discrete transaction, rather than part of a continuous the truth-finding role of the judge. This was the problem
engagement with the defense case. This has important conse- raised in the introduction of the French guilty plea
quences for the defense’s ability to assess the strength of the procedure. In Italy too, initial attempts at the introduction of
prosecution case. For example, the prosecution will typically an adversarial procedure in 1988 were resisted strongly by
disclose a summary of the suspect’s interrogation by the the judiciary and required constitutional change. Legal
police. If the lawyer in court was not present at this interro- cultures are slower to adapt, and the idea of negotiated
gation, she cannot independently judge the accuracy of this justice with contractual-type relationships does not sit well
summary – which is of concern, because the summary is with the traditional public-interest-oriented Italian judicial
prepared by police staff and tends to reflect the police role (Maffei, 2004).
interpretation of events, minimizing mitigation or Whatever the procedure within which bargaining takes
exculpatory comments. In France, the defense may only view place, it requires the accused to waive her trial rights and so the
the video recording of the interrogation (used in juvenile opportunity to test out the accusation against her. What does
cases) if the summary is disputed. But as the lawyer at court she receive in return? Is it a bargain, a lesser punishment than
is unlikely to be the same attorney present during the she deserves, as Justice Scalia claimed in Lafler? This certainly
interrogation, she will have no personal knowledge of the seems unlikely in the United States, where the “expected post-
case beyond what the accused is able to tell her. trial sentence is . like the sticker price for cars: only an
The quality of legal representation is also variable. In ignorant, ill-advised consumer would view the full price as
countries where custodial legal advice has recently been intro- the norm and anything less a bargain” (Justice Kennedy in
duced or strengthened (largely as a result of the European Court Lafler, quoting Bibas, 2011: p. 1138). In inquisitorial-type
of Human Rights case Salduz v. Turkey, 2008), duty rotas are systems, bargaining is less widespread and not yet
staffed by lawyers with little or no criminal law experience in institutionalized to the extent of systematic overcharging.
order to spread the workload – and in some instances to enable The more active judicial and prosecutorial functions also
lawyers to build up a criminal practice. This replicates in part appear to guard against the worst excesses of purely
what happened in England and Wales in the early years negotiated justice, for the time being at least.

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Plea Bargaining: A Comparative Analysis 231

Langer, M., 2006. Rethinking plea bargaining: the practice and reform of prosecutorial
See also: Crime Policy in the United States; Policing;
adjudication in American criminal procedure. American Journal of Criminal Law
Prosecution; Punishment: Social and Legal Aspects; Trials. 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.
Bibliography 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.
Alschuler, A.W., 2013. Lafler and Frye: two small band-aids for a festering wound. HMSO, London.
Duquesne University Law Review 51, 673–707. McConville, M., Hodgson, J., Bridges, L., Pavlovic, A., 1994. Standing Accused: The
Bibas, S., 2011. Regulating the plea bargaining market: from Caveat Emptor to Organisation and Practices of Criminal Defence Lawyers in Britain. Clarendon Press,
consumer protection. California Law Review 99 (4), 1117–1161. Oxford.
Blackstock, J., Cape, E., Hodgson, J., Ogorodova, A., Spronken, T., 2014. Inside Police Miller, L.L., Eisenstein, J., 2005. The Federal/state criminal prosecution nexus: a case
Custody. Intersentia, Antwerp. study in cooperation and discretion. Law & Social Inquiry 30, 239–268.
Hodgson, J., 2001. The police, the prosecutor and the juge d’instruction: judicial super- Miller, M.L., 2004. Domination & dissatisfaction: prosecutors as sentencers. Stanford
vision in France, theory and practice. British Journal of Criminology 41 (2), 342–361. Law Review 56, 1211.
Hodgson, J., 2005. French Criminal Justice: A Comparative Account of the Investigation Pizzi, W.T., Montagna, M., 2004. The battle to establish an adversarial trial system in
and Prosecution of Crime in France. Hart Publishing, Oxford. Italy. Michigan Journal of International Law 25, 429–466.
Hodgson, J., 2012. Guilty pleas and the changing role of the prosecutor in French Rauxloh, R., 2011. Formalization of plea bargaining in Germany: will the new legislation
criminal justice. In: Luna, E., Wade, M. (Eds.), The Prosecutor in Transnational be able to square the circle? Fordham International Law Journal 34 (2), 296–331.
Perspective. Oxford University Press, Oxford, pp. 116–134. Schulhofer, S.J., 1984. Is plea bargaining inevitable? Harvard Law Review 97, 1037.
Hodgson, J., Roberts, A., 2010. Criminal process and prosecution. In: Cane, P., Thaman, S. (Ed.), 2010. World Plea Bargaining: Consensual Procedures and the
Kritzer, B. (Eds.), Oxford Handbook of Empirical Legal Studies. Oxford University Avoidance of the Full Criminal Trial. North Carolina Academic Press, Durham.
Press, Oxford. Watson, D., 2010. The attorney general’s guidelines on plea bargaining in serious fraud:
Illuminati, G., 2005. The frustrated turn to adversarial procedure in Italy. Washington obtaining guilty pleas fairly? Journal of Criminal Law 74 (1), 77–90.
University Global Studies Law Review 4 (3), 567–581. Weigend, T., 2008. The decay of the inquisitorial ideal: plea bargaining invades German
Langer, M., 2004. From legal transplants to legal translations: the globalization of plea criminal procedure. In: Jackson, J., Langer, M., Tillers, P. (Eds.), Crime, Procedure
bargaining and the Americanization thesis in criminal procedure. Harvard Interna- and Evidence in a Comparative and International Context. Hart Publishing, Oxford,
tional Law Journal 45 (1), 1–64. pp. 39–64.

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