The Trade-offs of Justice: A Theory of the Optimal Use of Alternative Criminal Procedures

Abstract

Criminal cases can be adjudicated via court trials or alternative criminal procedures, such as plea bargaining, penal order, or accelerated proceedings. We develop a theory of the optimal allocation of cases across these alternatives based on available evidence and budget resources allocated to the criminal justice system. The model shows that introducing alternative criminal procedures leads to fewer judicial errors and releases enforcement resources. Contrary to the common justification for these procedures, however, the model implies that resources released should be allocated primarily to the enforcement of low-severity offenses. The model also shows that the optimal scope of plea bargaining and penal order is greater than the scope of other alternative procedures, and that the limitations on the use of penal order in European countries appear to be excessive.

Keywords: criminal procedure; law enforcement; plea bargaining; penal order; accelerated proceedings

JEL Classification: K14, K41, K42