Note: This is the third and final post of a three-part series on inquisitorial procedure and its lessons for the U.S. criminal justice system. The first post explained the importance of making the results of the investigation fully available to the defense counsel and to the judge, as a check on prosecutorial overreach. The second post addressed the role of the accused or suspect in giving information, and explained how that person can be given incentives to speak. This final post describes a way to fix a problem at the heart of our criminal justice system: punishment without adjudication.

Part III: Adjudicating Pleas

In our haste to dispose of criminal cases through plea bargaining, we have almost abandoned adjudication. The civil law systems can show us how to restore evaluation of evidence at reasonable expense.


Because our jury trials have become so long, expensive, and unpredictable, plea bargains have taken over. Currently, in the federal system, over 97% of felony convictions are the result of a plea bargain. The percentages in state systems are similar. Plea bargaining has the immense advantage of being fast and cheap. But it has the immense disadvantage of providing virtually no evaluation of evidence beyond that of the prosecutor. In other words, it is adjudication-free. A criminal justice system that provides almost no adjudication before sending persons to prison is a scandal.

Even in their abbreviated procedures for criminal cases, civil law systems manage to provide some adjudication, and at reasonable expense. This is what we should be aiming for, and what this post explains how to do.

I’ll begin by discussing the problems with plea bargaining. On the surface, plea bargaining may appear fair, even as a benefit for the accused. After all, both the prosecution and the defense have to agree to the deal. But after digging a little deeper, problems rapidly surface. I’ll discuss three of these problems.

The first major problem is asymmetry of information. As I explained in the first post, increasingly, plea bargains are reached even before a formal charge is brought, and well before any discovery takes place. Prosecutors offer better deals if they don’t have to bring a formal charge (meaning grand jury indictment in the federal system), or turn over any information about the case. As a result, the defendant is pressured to take the deal without knowing what evidence the prosecution has. Defense counsel sometimes try to justify accepting a deal without discovery by saying that they can tell from interviewing their client what evidence the prosecution has. Perhaps so in some cases, but surely not in all. To solve this problem, no plea bargaining should be allowed until the prosecution has turned over to the defense and the judge all the evidence it has. In civil law systems, the defense and the judge have full access to the investigative file, so this practice has proved workable.

The second problem is that our sentencing discount for pleading guilty is so deep that even defendants with good defenses are tempted to plead guilty. In federal court, the average sentencing discount for pleading guilty is two-thirds off the sentence. So a defendant who accepts a guilty plea carrying a five-year sentence would typically be looking at 15 years if convicted after trial. That ten years’ difference is too much for some defendants to risk rolling the dice. Although it’s impossible to know how many defendants with good defenses plead guilty, it’s certain that some do, as recent exonerations demonstrate. At this point, much of the sentencing regime is designed to facilitate guilty pleas, with long terms on the books for certain offenses and mandatory minimum sentences. In contrast, in civil law systems the pressure on defendants to accept abbreviated procedures isn’t so draconian. Most civil law systems provide a one-third discount off the sentence if the defendant agrees to an abbreviated procedure. That is also coercive to some extent, but not nearly as much as our system.

The third and most important problem is that our plea bargaining system allows judges to avoid adjudicating. As I explained in the first post, in theory, judges are supposed to make sure that there is a “factual basis” for the plea agreement. And they are required to conduct a plea colloquy. But in practice, most plea colloquies are perfunctory. The judge runs through a laundry list of rights the defendant is giving up, and the defendant says very little about the events at issue. The judge rubber-stamps the deal, without having any further information.

Contrast that with the situation in civil law countries. The judge has the full investigative file, and is expected to read it. Often abbreviated procedures are not driven not by the prosecutor, who only plays a minor, ratifying role (similar to the judge in our system). The proceeding is in effect a bargain between the judge and the defense counsel. The bargaining is over the sentence, not the charge, which is why the prosecutor plays a minimal role.

One of the most effective of these abbreviated procedures developed in Italy. Italian judges created a procedure, known as the giudizio abbreviato, that has since been ratified by the legislature. (See William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale Journal of International Law 1, 23-26 (1992).) The judges offer defendants a deal: either go to adversarial trial, or accept a decision by professional judges based almost entirely on the investigative file, with a one-third discount on the sentence. Only the defendant may appear as a witness, and he may request interrogation by the judge. Many defendants in Italy like this idea of a trial on the file, and the procedure has flourished.

We may criticize the lack of an extensive oral proceeding. But at least a judge is evaluating the evidence, unlike the vast majority of cases in our system. And for most of the abbreviated proceedings, judges in the civil law systems must write an opinion describing the facts found, and that decision is subject to appeal.

These practices are a model for improving plea bargaining in the United States. A judge with the full investigative file and access to the defendant, incentivized to speak, would be required to determine whether punishment is justified. The judge would then write an opinion explaining the facts found, with that opinion subject to appeal. This would indeed mean more work for the judge. But it seems a relatively small price to pay for an important safeguard on accuracy before convicting someone, and especially before imprisoning someone.

I hope this series of posts has served as an introduction to a range of possible reforms to our criminal justice system. We need not remain trapped in narrow, adversarial thinking. We can look around, and adapt the best of what we discover.

Author Biography: Renée Lettow Lerner is Donald Phillip Rothschild Research Professor of Law at George Washington University Law School. Professor Lerner works in the fields of U.S. and English legal history, civil and criminal procedure, and comparative law. She advises judges, lawyers, and government officials from the United States and countries in Europe, Latin America, and Asia about the differences between adversarial and nonadversarial legal systems. She writes extensively about the history of American juries. She has a book forthcoming with Oxford University Press in the Very Short Introduction Series entitled The Jury. She is the author, with John Langbein and Bruce Smith, of the book History of the Common Law: The Development of Anglo-American Legal Institutions (2009). Professor Lerner received an A.B. summa cum laude in history from Princeton University. She was a Rhodes Scholar at Oxford University, where she studied English legal history. At Yale Law School, she was Articles Editor of the Yale Law Journal. She served as a law clerk to Justice Anthony M. Kennedy of the U.S. Supreme Court and to Judge Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit. From 2003 to 2005, she served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice.