From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure (original) (raw)
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Plea Bargaing in Globalized World
This paper is directed towards exploring the reasons behind increasing adoption of ADR mechanism Plea bargaining worldwide, the advantages it provides along with its inherent fallacies or deficiencies and how the phenomena of globalization has aided in spreading and adoption of the concept of Plea bargaining.
The article begins with the historical review of different attitudes toward bargained justice in countries belonging to the Continental European tradition, and those belonging to the tradition deriving from England. The last century has led to the rapprochement of these attitudes, but residual differences remain, and the author focuses on the most prominent among them. He then discusses arguments in favour and against negotiated outcomes of criminal cases, irrespective of the form of these negotiations. He concludes that the only persuasive arguments in favour of the practice are those of practical necessity – the over-burdening of courts, and evidentiary difficulties in piercing the veil of organized crime. Leaving the context of national systems, the author then examines those special features of international crimes, and the context in which they occur, that have a bearing on the desirability of bargaining with the accused. He argues that these special features reinforce the view that the practice can persuasively be justified only on the ground of practical utility. There follows a brief review of bargaining as practiced by ICTY, a court with a limited lifespan , and bargaining as structured under the ICC normative scheme. The last section of the article is devoted to the question of which model of bargaining is better suited to the environment of international criminal proceedings – the continental one of in-court confession, or the Anglo-American one of guilty pleas. Whatever model seems most appropriate, the author concludes, it would be desirable to hold as many trials as possible, and take recourse to bargaining only when absolutely necessary.
Plea Bargaining, Conviction Without Trial, and the Global Administratization of Criminal Convictions
Annual Review of Criminology, 2020
This article documents the diffusion of plea bargaining and other mechanisms to reach criminal convictions without a trial and argues that their spread implies what this article terms an administratization of criminal convictions in many corners of the world. Criminal convictions have been administratized in two ways: ( a) Trial-avoiding mechanisms have given a larger role to nonjudicature, administrative officials in the determination of who gets convicted and for which crimes, and ( b) these decisions are made in proceedings that do not include a trial with its attached defendants’ rights. The article also proposes a way this phenomenon could be quantitatively measured by articulating the rate of administratization of criminal convictions, a metric to allow for comparison among different jurisdictions. The article then presents cross-national data from 26 jurisdictions on their rate of administratization of criminal convictions and different hypotheses that may help explain variat...
This article intends to introduce the need of rethinking the institute of international cooperation on criminal matters. The distinct criminal proceedings adopted by States around the world and the rising of transnational criminality change the meaning of the international law cannon known as locus regit actum. Reshaping the institute through the creation of normative standards or patterns, in regard of human rights treaties and diverse legal cultures (continental and adversarial) must be considered an urgent need.
The Plea Agreement – a New Way of Negotiated Justice in the European Judiciaries
Agora International Journal of Juridical Sciences
The aim of this article is to emphasize the main features of the Plea Agreement procedure in the European traditional systems, common law and civil law, as well as the features of this concept as it has been implemented into the proceedings of some European countries and, accordingly, to analyse the reasons for which, the expertise of these already implemented procedures might be a pathway to solve many shortcomings of the national jurisdictions.
Handbook on Sentencing Policies and Practices in the 21st Century Ed by Cassia Spohn and Pauline Brennan , 2020
Anglo-American justice systems are marked by the importance of adversarial principles, including evidentially-contested trials. An adversarial approach is often said to be the best way of protecting the presumption of innocence against the might of the state. However, the daily reality is starkly different. Anglo-American justice systems depend heavily on the generation of guilty pleas and agreement between prosecution and defence. Why is this? Is this reliance on guilty pleas simply borne of pragmatic necessity, or, are there are other dynamics at play? What are the normative implications for the fairness of the system? Legal practitioners and defendants widely believe that those who plead guilty are likely to receive a reduced sentence compared to those who are convicted of the same charges following a trial. This chapter interrogates the plea-dependent (guilty/not guilty) “sentence differential.” “Sentence differential” is the normatively neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section I investigates whether a sentence differential violates the cherished values of the presumption of innocence and the notion of equality before the law. It examines the criticism that the sentence differential operates to penalize those who continue to plead not guilty by imposing (or threatening to impose) a higher sentence than if they plead guilty. It also considers the criticism that the sentence differential may have disparate impacts on different groups (specifically minorities and those who are socially and economically disadvantaged). Section II reflects on why, in light of the dangers to principled sentencing and liberal rule of law values, justice systems continue to persist with guilty plea discounts. Finally, drawing on recent empirical evidence, Section III investigates how the experiences of defendants may be affected by the sentence differential.
Law and Economics of Plea-Bargaining
SSRN Electronic Journal, 2000
Although highly criticized by legal scholars, plea-bargaining is probably the most transplanted instrument of criminal procedure. In contrast to most of the legal literature, for the French case (plaider coupable), we are not aware of any empirical assessment. 4 It includes summary procedures for those who do not contest guilt; unconditional and conditional dismissals; confession of guilt to get a reduction in the sentence, warnings and reprimands. 5 Obviously the lack of success depends, in part, of how we define plea-bargaining. If we take a broader definition of plea-bargaining as any form of negotiated sentence that avoids criminal trial, then we might account for half or more of the convictions in many civil law countries.