Consensual Penal Resolution

Influence of United States Plea Bargaining

However, for the consensual resolution of more serious offenses, reformers invariably look at the U.S. system of plea bargaining, which has been so successful that trials (whether by jury or the judge) account for less than 10 percent of all final judgments. In America, prosecutors have full discretion in most states to [Page 248]reduce or even dismiss otherwise provable criminal charges and even lock in the ultimate punishment in exchange for the defendant's promise to plead guilty. Because of the influence of plea bargaining and adversarial procedure in modern reforms, there is talk of the “Americanization” of criminal procedure worldwide.

The inquisitorial principles of legality, judicial evaluation of the adequacy of the proof, and reasoned judgments seemed to leave no room for the parties privately manipulating the charges and the sentence to reach an agreement, as happens in American plea bargaining, especially since American judgments require no thorough assessment of the evidence or reasons for judgment. Until recently, jurists considered even allowing an accused to plead guilty anathema in Germany, France, the Soviet Union, Italy, and all of Latin America. A suspect's admission of guilt was treated only as a piece of evidence to be evaluated by the trier of fact. Europeans talked of “bargaining with justice” in very derogatory terms.

An exception appeared to have been a procedure in use since the late nineteenth century in Spain, which allows the accused to express her “conformity” with pleadings and move directly to sentence. Today, this procedure of conformidad is applicable as long as the punishment does not exceed six years. Europeans also began introducing streamlined “penal orders” for minor crimes, usually punishable only by fine, whereby the prosecutor would suggest a punishment by a letter to the defendant and the punishment would become final if the accused did not object.

However, the reality of overcrowded dockets and the tidal surge toward the accusatorial-adversarial procedural model led to big changes in the late 1980s. The 1988 Italian Code of Criminal Procedure allows the accused to make a “request for application of punishment” if charged with a crime and the maximum term of imprisonment does not exceed five years; when the defendant chooses this procedure, his punishment will be reduced by one-third. Russia introduced a similar procedure in 2001, which is now applicable to crimes punishable by up to ten years; similar procedures have been adopted in other new codes in former Soviet Republics and in Latin America. Even France relented in 2004, introducing a procedure for accepting guilty pleas in cases punishable by no more than five years. The Italian code also permits a person accused of more serious crimes to agree to a trial based primarily on the contents of the dossier of the preliminary investigation in exchange for a one-third discount in punishment.

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