Plea Bargaining as Second-Best Criminal Adjudication and the Future of Criminal Procedure Thought in Global Perspective

RESEARCH HANDBOOK OF PLEA BARGAINING (Máximo Langer, Mike McConville and Luke Marsh eds., Edward Elgar Publishing, Forthcoming

24 Pages Posted: 5 Jun 2023

See all articles by Maximo Langer

Maximo Langer

University of California, Los Angeles (UCLA) - School of Law

Date Written: May 19, 2023

Abstract

In the last three decades, plea bargaining and other mechanisms to impose criminal convictions without trial have spread around the world. In my previous work, I have argued that the spread of plea bargaining and equivalent mechanisms has implied the spread of an administrative model of criminal adjudication around the world. In this chapter, I explore two questions concerning this phenomenon.

First, I argue that one central feature of plea bargaining and other trial-avoiding conviction mechanisms is that they are second-best criminal adjudication. Most legal systems around the world still assume that the trial is the default and best way to adjudicate criminal cases, and thus understand plea bargaining and equivalent mechanisms as a second-best alternative. In addition, for reasons that I discuss, these mechanisms are indeed second-best criminal adjudication because, everything else being equal, they present more challenges than trials to advance most of the goals of the criminal process.

Second, these mechanisms to reach criminal convictions without trial require a rethinking of criminal procedure and its safeguards and of how the criminal process may advance its goals. The argument here is that criminal procedure thought, regulations, and safeguards are still built upon the assumption that trials are the main form of criminal adjudication, that the back-and-forth of criminal litigation in individual cases is the main form to advance the goals of the criminal process, and that deficiencies or errors in the process may be cured on appeal. My argument here is that since these assumptions do not apply any more to most criminal cases in many legal systems due to the spread of trial-avoiding conviction mechanisms, we should rethink criminal procedure and its safeguards. In this regard, I argue that 1) criminal procedure codes and regulations should assume that trial-avoiding conviction mechanisms are the rule, not the exception; 2) the prosecutor should be reframed as a de facto adjudicator of the criminal case; 3) legal regulations, institutions, and individual actors should be skeptical regarding the reliability and fairness of the defendant’s consent as a way to legitimate plea bargaining and other trial-avoiding conviction mechanisms; 4) legal regulations, institutions, and individual actors should counterbalance the potential perverse incentives that plea bargaining and other trial-avoiding conviction mechanisms generate; and 5) due process should be thought of not only as an individual right, but as a systemic feature of the criminal process.

Keywords: Plea Bargaining, Criminal Adjudication, Criminal Procedure, Comparative Criminal Procedure

Suggested Citation

Langer, Maximo, Plea Bargaining as Second-Best Criminal Adjudication and the Future of Criminal Procedure Thought in Global Perspective (May 19, 2023). RESEARCH HANDBOOK OF PLEA BARGAINING (Máximo Langer, Mike McConville and Luke Marsh eds., Edward Elgar Publishing, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4453709 or http://dx.doi.org/10.2139/ssrn.4453709

Maximo Langer (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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