Plea Bargaining and Penal Orders: An Empirical Approach to Disappearing Trials

Abstract

The present dissertation investigates the global adoption and use of administratization mechanisms, which enable the imposition of criminal convictions without trial. In particular, it considers two administratization mechanisms, currently adopted worldwide: plea bargaining and penal orders. In doing so, it investigates 174 jurisdictions, showing that 125 of them currently allow for at least one administratization procedure, with plea bargaining being regulated in a total of 101 jurisdictions and penal orders in 51. Historical patterns are also explored, discussing the adoption of plea bargaining and penal orders in connection with the comparative success of inquisitorial and adversarial models in criminal procedure and with the more recent and global strive for efficiency in criminal law enforcement. The use in practice of administratization mechanisms is also explored, showing their prevalence over ordinary trials in Europe, the Americas, and Eastern Asia. Reasons driving the adoption of plea bargaining are analyzed in cross-country regressions, revealing the significant influence of legal origins, Sharia, democratic governance, and material resources. Legal origins and material resources, together with the existence of jury trials, also correlate with differing levels of use of plea bargaining across jurisdictions. Jurisdiction-specific factors influencing the use of administratization mechanisms are in turn explored with reference to Italy. The results of instrumental variable analyses show that longer trial delays and higher concentrations of lawyers reduce the use of both plea bargaining and penal orders in Italy. The favored explanation for the former finding is that the Italian criminal statute of limitations, by mandating the acquittal of defendants in the case of longer trial delays, provides defendants with strong incentives against the use of administratization mechanisms. Regarding the latter finding, when facing higher market competition, lawyers might advise their clients against the use of plea bargaining and penal orders, since ordinary trials yield higher financial returns for them. Overall, this dissertation shows that administratization mechanisms constitute an essential component for the functioning of contemporary criminal justice systems globally.