An Offer You Can’t Refuse? Punishment Without Trial in Italy and the United States

Abstract:     
This Article compares the steps taken by Italy and the United States to reconcile the need for an efficient criminal justice system on the one hand, and the desire to achieve justice or discover the truth on the other. Plea bargaining in the United States has a significant history and has generated a substantial amount of literature critical of the device as violative of a criminal defendant's constitutional rights, particularly the right to be tried by a jury of one's peers. In addition, scholars have criticized the distortive effect of plea bargaining on the roles of the prosecutor, judge, and defense counsel. Similarly, the trial-avoidance mechanisms adopted in Italy only eight years ago already have raised a number of constitutional concerns over the powers, roles, and authorities of the players in the criminal justice system. More recently, in the United States, plea bargaining has raised diametric concerns that the criminal justice system is too soft on criminals by allowing those who admit guilt to serve a lighter sentence than what they might otherwise deserve. These concerns have resulted in efforts to limit the discretion of the prosecutor to engage in plea bargaining. In contrast, Italy is currently examining ways to broaden the application of trial-avoidance procedures. Analysis of these trial-avoidance measures in the United States and in Italy reveals a number of pendulum swings in both countries with respect to attitudes concerning the purposes of a criminal justice system, and the beliefs regarding the appropriate roles of the players involved.

Number of Pages in PDF File: 52

Keywords: Comparative criminal law, comparative criminal justice, comparative criminal procedure, plea bargaining, patteggiamento, giudizio abbreviato, applicazione della pena su richiesta delle parti, Italian criminal justice reforms, trial avoidance procedures

Accepted Paper Series