The Prosecutor’s Role

Abstract

This chapter compares plea bargaining in the United States and Europe against the backdrop of distinct legal traditions and approaches to rights violations. It shows that plea bargaining in the United States is both “widespread and generally wide open,” with few constraints and almost no judicial participation beyond a relatively pro forma plea colloquy. In contrast, negotiated settlements in Europe tend to involve at least a moderate level of court process to ensure the factual basis for a guilty plea. Moreover, bargaining is typically limited to the sentence and does not involve deep discounts for those who plead guilty. The chapter also connects the proliferation of plea bargaining to a defendant's procedural rights. It suggests that plea bargaining in America provides a mechanism to induce defendants to waive their rights, avoiding trial costs and application of the mandatory exclusionary rule for constitutional violations.