Commentary on Nathan Schaal Wilson and Gabriela Jara's ‘Plea Bargaining and the Legislative Response’

16 Pages Posted: 9 Jul 2013 Last revised: 2 Oct 2013

Orane Dornier

University of Cologne

Date Written: July 9, 2013

Abstract

This article offers a commentary, from a comparative perspective, on Nathan Schaal Wilson and Gabriela Jara’s article (in this collection) ‘Plea Bargaining and the Legislative Response’. The authors see the phenomenon of plea bargaining not only as an agreement between the government officials and the accused (or rather counsel for the accused) as the two “parties” to the criminal matter, but as a de facto part of criminal policy. They point to the development of a “feed-back loop” whereby plea bargaining lowers the sentences actually imposed by courts and thereby pushes legislatures toward raising sentence levels. In this system, it is left to prosecutors and their discretionary power to achieve the sentence levels actually desired by the legislature.

This commentary takes a comparative approach in outlining possible solutions for the problems caused by plea bargaining, using a detailed comparative analysis of the German model in particular.

Part I considers the existing and newly implemented rules in German law intended to regulate and limit plea bargaining. Here the question arises whether these are sufficient to keep plea bargaining under control. Part II considers whether German law may even be a source of inspiration for the US system.

Of course the question remains whether legal systems as different as those of Germany and the US can even be compared, and if so, whether solutions can be drawn from such comparison.

Keywords: Plea Bargaining, German Law

Suggested Citation

Dornier, Orane, Commentary on Nathan Schaal Wilson and Gabriela Jara's ‘Plea Bargaining and the Legislative Response’ (July 9, 2013). Warwick School of Law Research Paper No. 2013/13 (Special Plea Bargaining Edition, editor Jackie Hodgson ). Available at SSRN: https://ssrn.com/abstract=2291407

Orane Dornier (Contact Author)

University of Cologne ( email )

Albertus-Magnus-Platz
Cologne, 50923
Germany

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