American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure
Markus D. Dubber
University of Toronto - Faculty of Law
Stanford Law Review, Vol. 49, No. 3 (1996).
In this paper, I propose that we reconsider the foundation of our system of punishment imposition in the context of assessing recent proposals to eradicate plea bargaining in this country by importing the juryless and judge-dominated German criminal process. Proposals to import the German process are based on an unrealistic image of the German criminal trial. I present an alternative account of the German criminal process that draws on statutory and statistical materials as well as on field research, including trial observation and interviews with German judges, prosecutors, and lay judges. More importantly, the challenge of plea bargaining in the face of a constitutional right to a jury trial merely illustrates a more fundamental challenge to analyze and legitimize the system of punishment imposition as it operates in fact. To meet this two-fold challenge, criminal procedure must shed its status as the poor relation of constitutional theory. The constitution provides neither an account nor a theory of the modern criminal process, which is dominated by informal and nonpublic agreements and no longer by formal public trials.
JEL Classification: K14
Date posted: September 13, 1996
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