Guilty Plea: Plea Bargaining - A Comparative Perspective

Plea bargaining is common in England, Canada, and most other nations of the British Commonwealth. As recently as 1979, however, a noted law review article proclaimed that Germany was a "land without plea bargaining" (Langbein, 1979). Not only was the formal plea of guilty unknown in serious cases in Germany, but prosecutors and judges did not promise or negotiate for in-court confessions. Even implicit concessions were unlawful, and because German trial procedure was simpler and more straightforward than English and American procedure, concessions for confession were unnecessary.

This law review article's claim was plausible when it was made, but it did not remain accurate. European and American criminal justice systems have become more alike, and most of the movement has come on the European side. As trials in Germany and elsewhere became longer and more adversarial, as complex prosecutions for white-collar crime came before the courts in greater numbers, and as case loads increased, German prosecutors offered concessions to defendants not to contest their guilt. Italy, in fact, formally instituted a system of plea bargaining by statute. Plea bargaining remains less frequent in Continental Europe than in England and America. One German observer declares that "some kind of bargaining takes place in roughly twenty to thirty percent of all cases" (Herrmann, p. 756). Moreover, debate about the propriety of plea bargaining, which has faded in America, remains lively in Germany. The recent history of Continental jurisdictions seems to teach the same lesson as our own history. The more elaborate and adversarial the trial process becomes, the less likely it is to be used.