Why plea-bargaining fails to achieve results in so many criminal justice systems: A new framework for assessment

The economics of plea-bargaining is largely over-optimistic and contrasts with legal scholarship on the topic. We have shown that part of the reason is that it still relies heavily on the 'efficient prosecutor' model and only recently has started looking at the possible advantages of judicial scrutiny. As a consequence, the economics of plea-bargaining has largely failed to influence the debate in Europe and around the world. Further, it was unable to predict the relative failure of Italy (and possibly France), although there is an ex post rationalization (bargaining as an inadequate solution to delays in trial rather than as a device to generate prosecutorial efficient allocation of resources). This paper proposes a new approach based on viewing the contract, which is at the heart of the plea-bargain, as being located in a wider nexus of relationships involving parties who are not directly (or effectively) represented at the bargaining table. By looking in detail to the contract between defendant and his lawyer, the role of the prosecutor, and third party effects, we have provided a richer model that is more skeptical of the efficiency of plea-bargaining. We also point out that a successful transplant of plea-bargaining from the United States to civil law jurisdictions such as France and Italy will very much depend on a reform of criminal procedure that addresses the agency costs we have identified.