The Institution of Plea Bargaining

The institution of plea bargaining appeared for the first time in the United States of America, in the early twentieth century, for pragmatic reasons - to facilitate the work of courts. Criminal hearings started to become long and tedious, especially since the late nineteenth century. Given the circumstances, practitioners could not resolve all cases through a "full trial", ie a process in front of jurors, and so they started to look for alternative solutions. The institution of plea-bargaining of has raised many controversies all over the world where was implemented, (in Italy is known as pattegiamento and is France is called plaider-coupable) the most heated ones can be found in the U.S., where an author has described it as a total disaster.

During the twentieth century, the recognition of guilt became an essential element of criminal proceedings, both at the federal level and in different states. "Plea bargaining" is based on the considerable growth in recent decades of the principles that take into account the will of the defendant. In the U.S., more than 90% of convictions are based on this type of admittance (Ross, 2006). Recognition of culpability attracts a negotiation between prosecution and defense. Thus, in exchange for recognition, the defendant obtains from the prosecutor a review of the crime or the promise to recommend leniency to the judge.

One of the objections to this institution was that the adversarial principle is violated, this being a fundamental principle of criminal proceedings. But bear in mind that this principle should not be exercised the same in all cases, as simple cases where the facts have been recognized cannot be treated the same way as the most complex cases, where the defendants have not admi...

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... fill this defect. In the United States, this rule is praetorian.

As already presented, plea bargaining has both advantages and disadvantages. In a judiciary system that is overcrowded and where cases take months and even years to be solved, this institution is a great solution. Of course, limits must be imposed. As presented, the California low is a good example of limits imposed to this institution.

Works Cited

Grossman GM, Katz ML (1983), Plea bargaining and social welfare, The American Economic Review

Ross JE, (2006), The Entrenched Position of Plea Bargaining in United States Legal Practice, The American Journal of Comparative Law

Santobello v. New York, (1971), 404 U.S. 257, 261 retrieved from http://supreme.justia.com/us/404/257/case.html

Stuntz, William J. (Jun., 2004), Plea Bargaining and Criminal Law's Disappearing Shadow, 117, Harvard Law Review