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

Nuno Garoupa, University of Illinois College of Law
Frank Stephen, University of Manchester

Abstract

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. It is now 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. They have generated serious opposition.

In that respect, the Law and Economics literature contrasts with many other legal approaches. The most essential message of the vast economic literature on plea-bargaining is that it is an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. While the discussion that has emerged as a result of the comparative observations relies on the beneficial nature of transplants in criminal procedure, we prefer to see it as an indication that the Law and Economics endorsement of plea-bargaining should be reassessed. 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.

Our new theory emphasizes the role of the prosecutor and that of the defense counsel. We argue that the incentives of the prosecutor and those of the defense counselor are determinants of the success or failure of plea-bargaining. For example, on the defendant’s side, the way a criminal legal aid system is implemented, or the way public defender offices are organized, explain many of the difficulties encountered by plea-bargaining in England & Wales as well as in France or in Italy. On the prosecutor’s side, the literature inspired by the American empowered prosecutor is complicated with a model that takes into account the serious institutional differences with other prosecutorial bodies, seen as weaker in England & Wales and more bureaucratic in most civil law jurisdictions.

We are skeptical that plea-bargaining can lead to or is consistent with the desirable outcome in many circumstances. Therefore, our point is not to reject an economic assessment of plea-bargaining, or criminal procedure in general, but rather mitigate any general optimism about the result of such assessment. 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.