Plea Bargaining, Trial-Avoiding Conviction Mechanisms, and the Global Administratization of Criminal Convictions
Annu. Rev. Criminol. DOI: 10.1146/annurev-criminol-032317-092255 (2019)
67 Pages Posted: 23 Sep 2019 Last revised: 11 Nov 2019
Date Written: September 14, 2019
Plea bargaining and other mechanisms to reach a conviction without a trial have been spreading around the world in the last few decades (Langer 2004; Iontcheva Turner 2009; Thaman 2010; Fair Trials 2017). So far, the implications of this phenomenon have not been fully understood. This article argues that the spread of these mechanisms implies what this article terms an administratization of criminal convictions in many corners of the world. Criminal convictions have been administratized in two ways: 1) trial-avoiding mechanisms have given a larger role to non-judicial, administrative officials in the determination of who gets convicted and for which crimes; and 2) these decisions are made in proceedings that do not include a trial with its attached defendants’ rights. The administrative determination of criminal convictions is assumed to be legitimized through the defendants’ admission of guilt or formal consent to the adjudication of the case without a trial. In this regard, what characterizes plea bargaining and related trial-avoiding conviction mechanisms is neither negotiation between the defense and the prosecutor or the judge, nor coercion—even if negotiation and coercion are features of a subset of these mechanisms. Rather, the common thread among these mechanisms is administratization.
This paper documents the spread of plea bargaining and other trial-avoiding conviction mechanisms in a substantial part of the world based on research that included consultation with 62 experts from 35 countries. The paper further names, theorizes and describes the phenomenon of administratization of criminal convictions. The paper also proposes a way this phenomenon could be quantitatively measured by articulating the rate of administratization of criminal convictions, a measure or metric to allow for comparison among different jurisdictions. The paper then present cross-national data on 26 jurisdictions on their rate of administratization of criminal convictions and on different hypotheses that may help explain variation across jurisdictions on this rate. This paper raises throughout questions for future qualitative and quantitative empirical research on the administratization of criminal convictions and on plea bargaining and other ways to reach a criminal conviction without a trial.
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