2022 - 01 - 31 - Máximo Larger - Plea Bargaining, Trial-Avoiding Con-Viction Echanisms, and The Global Administratiza-Tion of Criminal Convictions

When citing this paper, please use the following: Langer M. 2019.
Plea bargaining, trial-avoiding

conviction mechanisms, and the global administratization of criminal convictions. Annu. Rev. Criminol.
DOI: 10.1146/annurev-criminol-032317-092255
Plea Bargaining, Trial-Avoiding Conviction Mechanisms and the Global

Administratization of Criminal Convictions
By Máximo Langer*
*
Professor of Law, UCLA School of Law (contact at langer@law.ucla.edu). I would like to thank
Manon Cayrou, Matthew Fox, Sandro Germann, and Tom Pleiner for their research assistance,
and very especially Ricardo Lillo Lobos for his work on, among other things, Table 1, Figure 1
and Table 2 of this piece. I would also like to thank Kai Ambos, LaToya Baldwin Clark, Christoph
Burchard, Jennifer Chacón, Andrew Manuel Crespo, Mirjan Damaška, Sharon Dolovich, Kirstin
Drenkhahn, Malcolm Feeley, Stefan Harrendorf, John Jackson, Manon Jendly, Jack Katz, Adriaan
Lanni, Tracey Meares, Sasha Natapoff, Benjamin Nyblade, Richard Re, Julian Roberts, Joaquim
Savelsberg, Máximo Sozzo, Stephen C. Thaman, Sherod Thaxton, Joanna Schwartz, Marc
Thommen, an anonymous reviewer, and participants in the panel “The Transnational Ordering of
Criminal Justice” (organized by Ely Aaronson and Gregory Shaffer) of the 2018 Law & Society
Association Annual Meeting, in the Harvard Law School Criminal Justice Workshop in February
2019, in the Workshop sobre Colaboração Premiada at Lisbon University in April 2019, in my
keynote lecture at the 8th Annual Conference of the Younger Comparativists Committee of the
American Society of Comparative Law at McGill University in May 2019, in a workshop at Diego
Portales University, Santiago, Chile, in June 2019, and in the 2019 Southern California Criminal
Justice Roundtable for helpful conversations or their feedback on earlier versions of this piece.
Thank you also to Ely Aaronson, Taiba Alsafar, Kai Ambos, Gustavo Badaró, Olexandr Banchuk,
Károly Bárd, Andrey Borges de Mendoça, José Rodrigues Cambuta, Mark Cammack, James
Chalmers, Dae-Hyun Choe, Eilyn Cruz Rojas, Rodrigo da Silva Brandalise, Ibrahim Danjuma,
Paulo de Sousa Mendez, Wium de Villiers, JJ Disini, Kirstin Drenkhahn, Zlata Đurđević, Daniel
Foote, Dante Gatmaytan, Oren Gazal-Ayal, Jaan Ginter, Yehonatan Givati, Stefan Harrendorf,
Jenia Iontcheva Turner, Radha Ivory, Ricardo Jacobsen Gloeckner, Wojciech Jasiński, Martina
Jaussi, Mar Jimeno-Bulnes, David Johnson, Gerhard Kemp, Roman Kuybida, Gordana Lažetić,
Fiona Leverick, Margaret Lewis, Ma Qin, Elena Militello, Chinwe A. Mordi, Tamara
Morshchakova, Yong-Chul Park, Michiel Pestman, Mojca M. Plesničar, Radomir Prelević, Luca
Ranzoni, Kent Roach, Erika Róth, Eliseu José Sacoji, Astrid Liliana Sánchez Mejía, Filip Ščerba,
Peter Solomon, Barbara Stando-Kawecka, Kristine Strada-Rozenberga, Kai-Ping Su, Andrzej
Świtłiwski, Takashi Takano, Stephen C. Thaman, Marc Thommen, Ekaterina Trendafilova,
Milena Tripkovic, Anita Ušacka, Salvedis Vārpiņš, Dirk van Zyl Smit, Megumi Wada, and the
NGO Fair Trials, for their help or input on different jurisdictions covered in this piece. Finally, I
would like to thank Kevin Gerson, Shangching Huitzacua, Gabe Juárez, Elyse Meyers and the
UCLA Hugh and Hazel Darling Law Library, and Henry Kim and the UCLA School of Law
Empirical Research Group for their excellent research, data presentation and editing support. Any
mistakes are my responsibility.
Electronic copy available at: https://ssrn.com/abstract=3453576

Plea bargaining and related mechanisms have been spreading around the world in the last
few decades (Langer 2004; Iontcheva Turner 2009; Thaman 2010; Fair Trials 2017). So far, the
implications of this phenomenon have not been fully understood. This article argues that the spread
of these mechanisms implies what this article terms an administratization of criminal convictions
in many corners of the world. Criminal convictions have been administratized in two ways: 1)
trial-avoiding mechanisms have given a larger role to non-judicature, administrative officials in
the determination of who gets convicted and for which crimes; and 2) these decisions are made in
proceedings that do not include a trial with its attached defendants’ rights. The administrative
determination of criminal convictions is assumed to be legitimized through the defendants’
admission of guilt or formal consent to the adjudication of the case through these trial-avoiding
conviction mechanisms. In this regard, what characterizes plea bargaining and related trial-
avoiding conviction mechanisms is neither negotiation between the defense and the prosecutor or
the judge, nor coercion—even if negotiation and coercion are features of a subset of these
mechanisms. Rather, the common thread among these mechanisms is administratization.
In order to make this point, this article explains that plea bargaining is a way to reach a
criminal conviction without a trial. As such, plea bargaining should be studied together with other
procedural mechanisms adopted around the world that also enable reaching a conviction without
a trial. One may also study and analyze plea bargaining and other trial-avoiding conviction
mechanisms as part of the broader range of decisions by criminal justice operators, which includes
decisions that do not lead to a criminal conviction—such as formal and informal, unconditional
and conditional dismissals by the police, prosecutors and courts; pretrial supervision; mediation
and other alternative dispute resolution mechanisms; and acquittals. However, criminal
convictions are different from other decisions by criminal justice operators, because criminal
convictions publicly communicate that a person has been found guilty of the commission of an
offense, they are a precondition for formal punishment (fines, probation, prison, death penalty,
etc.), they may lead to the forfeiture of property connected to the crime, they enable collateral
consequences (such as restrictions on the ability to vote, to run for office, to work, to access public
housing, etc.), and they create a criminal record. Thus, the ways criminal convictions are globally
produced are worth studying in their own right.
This paper documents the spread of plea bargaining and other trial-avoiding conviction
mechanisms in a substantial part of the world and names, theorizes and describes the phenomenon
of administratization of criminal convictions. The paper also proposes a way this phenomenon
could be quantitatively measured by articulating the rate of administratization of criminal
convictions, a measure or metric to allow for comparison among different jurisdictions. The paper
then explores different hypotheses that may help explain variation across jurisdictions in the rates
of administratization of criminal convictions. This paper raises throughout questions for future
qualitative and quantitative empirical research on the administratization of criminal convictions
and on plea bargaining and other trial-avoiding conviction mechanisms more generally.
The paper is structured as follows: Section I documents the spread of plea bargaining and
related trial-avoiding conviction mechanisms in the last five decades, discusses the scope of the
existing literature on this phenomenon of diffusion and legal transplantation, and identifies issues
for future research. Section II summarizes some of the main findings of the qualitative and
quantitative empirical literature on plea bargaining and other trial-avoiding conviction

mechanisms in the United States and other individual jurisdictions and also points out issues that
researchers could further explore. Section III explains the advantages of conceptualizing plea
bargaining as a trial-avoiding conviction mechanism, instead of as “an alternative to the trial” or
as a “consensual criminal procedure.” Section III also introduces the concept of administratization
of criminal convictions and illustrates it by analyzing plea bargaining and other trial-avoiding
conviction mechanisms in four jurisdictions. Section IV introduces the rate of administratization
of criminal convictions, shows different degrees of administratization undergone at different times
by different jurisdictions, and discusses hypotheses to account for the variation in the rates of
administratization in different jurisdictions. The Appendix lists the sources used in this piece.
I. The Diffusion of Plea Bargaining and Related Trial-Avoiding Conviction Mechanisms
Four decades ago scholars characterized plea bargaining as a uniquely American phenomenon
(Langbein & Weinreb 1978; Langbein 1979-1). Though at the time there were commentators that
questioned how uniquely American plea bargaining truly was (Baldwin & McConville 1979;
Goldstein & Marcus 1977), there is no question that in many jurisdictions a trial was a necessary
requirement to issue criminal convictions for all offenses or at least for all non-petty offenses. This
was especially the case in civil law and other non-common law jurisdictions,1 where guilty pleas
did not exist.
Since the 1970s, there has been a substantial spread of plea bargaining and other trial-
avoiding conviction mechanisms that enable public officials to find a person formally guilty for
the commission of a criminal offense without a trial, relying on the defendant’s consent (Langer
2004; Iontcheva Turner 2009; Thaman 2010; Fair Trials 2017). Figure 1 illustrates this trend by
showing when plea bargaining and other trial-avoiding conviction mechanisms were statutorily
introduced or judicially recognized in 60 jurisdictions—see the Appendix at the end of this paper
for information on how these jurisdictions were selected, how the information about them was
gathered and the list of sources for each individual jurisdiction.
Table 1: Plea Bargaining, Penal Orders and Related Trial-Avoiding Conviction Mechanisms with Dates of Statutory
Introduction or Recognition by High Court in 60 Countries
Country Plea Bargaining (or equivalent) Penal order (or equivalent)

Angola2
1
However, this was not the case in Latin America where most jurisdictions did not have public
and oral trials and where criminal cases were adjudicated in written proceedings, typically kept
secret from third parties (Langer 2007).
2
Article 61.7 of the Law 34/11 of December 12, Law for Fighting Money Laundering to Finance
Terrorism (Lei de Combate ao Branqueamento de Capitais do Financiamento ao Terrorismo)—
providing for reduction of or exemption from punishment for those who collaborate with
authorities to prevent the constitution or continuation of a terrorist organization—is not listed in
Table 1 because it does not allow for punishment without trial. The voluntary payment of a fine
without a trial that has the legal effect of a criminal conviction (such as the one regulated in Art.
553.4 of the Criminal Procedure Code of Angola) could be included in an even broader project on
trial-avoiding conviction mechanisms than the one pursued in this article. However, it is not

Argentina 1997
Australia 19963
Belgium 2016
Bolivia 1999
Bosnia and Herzegovina 2003 2003
Brazil4
Bulgaria 19995
Canada 1995
Chile 20006 2000
China 20127
included here since it has a different origin and requirements than plea bargaining, penal orders
and equivalent mechanisms because it does not require formal consent before a court to the
application of the mechanism and prosecutors or other officials are not involved in setting the
amount of the fine.
3
This date refers to Maxwell v The Queen (1996) 184 CLR 501, 534. Other relevant cases are:
GAS v The Queen (2004); SJK v The Queen (Unreported, High Court of Australia, Gleeson CJ
Gummow, Kirby, Hayne and Heydon JJ, 19 May 2004). See also Brook et al. 2016:1152.
4
The Brazilian transação penal (penal transaction) may avoid the trial, and Brazilian Law N.
9099/1995, regulating penal transactions, says in Article 76, §4, that the judge will apply a
“punishment restrictive of rights or fine”; and Article 76, §6, talks about the “imposition of a
sanction”. However, the Supreme Federal Tribunal of Brazil has held that the penal transaction
does not entail a criminal conviction and if the defendant does not fulfill the conditions set through
the penal transaction, the prosecution against the defendant may continue. See, e.g., Supremo
Tribunal Federal, HC 79572, Relator(a): Min. Marco Aurélio, Segunda Turma, DJ 22-02-2002
PP-00034 EMENT VOL-02058-01 PP-00204, February 29, 2000; Supremo Tribunal Federal,
Súmula Vinculante n. 35, October 16, 2014 (based on multiple precedents); Supremo Tribunal
Federal, RE 795.567, rel. min. Teori Zavascki, P, j. 28-5-2015, DJE 177, September 9, 2015.
5
In force since 2000. There is also a mechanism similar to penal orders but that enables the
imposition of administrative, not criminal, penalties, and this is why I have not listed it as a penal
order. See Criminal Procedure Code of Bulgaria, Art. 375 et seq.; Criminal Code of Bulgaria, Art.
78a.
6
In force in the whole country since 2005.
7
The summary procedure was originally introduced in 1996, but in its original form it did not
require either a defendant’s admission of guilt or consent to the application of these proceedings.
See Criminal Procedure Law of the People’s Republic of China, Art. 174 (1996 Amendment);
Ramahdan 2014:88-9. In 2003, China’s official judicial interpretation required some conditions
for the summary procedure to be applicable, including that “The defendant and his (her) defender
raises no objection to the basic facts of the charged crime”. See Some Advice of the Supreme
People’s Court, the Supreme People’s Procuratorate and the Ministry of Justice on the Application
of Simple Procedure to the Hearing of Public Prosecution Cases, Art. 1 (2003). In 2012, summary
procedure was amended to require the defendant’s admission of guilt and consent to the application
of summary procedure. See Criminal Procedure Law of the People’s Republic of China, Art. 208
(2012 Amendment). This is why we include that year in Table 1. Summary procedure is currently
regulated in Art. 214 et seq. of the Criminal Procedure Law of the People’s Republic of China
(2018 Amendment). In 2018, Criminal Procedure Law of the People’s Republic of China, Art. 15
(2018 Amendment) was revised to provide for leniency to defendants who admit their guilt and

Colombia 19918
Costa Rica 1996
Croatia 2002 1998
Czech Republic 2012 1973
Ecuador 2000
El Salvador 1998
England & Wales 19709
Estonia 199610
France 2004 1972
Georgia 2004
Germany 200911 187712
Guatemala 1992
Honduras 1999
Hungary13 1998 1896
India 200514
Indonesia15
Israel 197216
Italy 1988 1930
their willingness to accept the punishment. This provision has been compared to plea bargaining
but since it does not avoid the trial, we have not listed it in Table 1.
8
Decreto 2700/1991, Art. 37 (terminación anticipada del proceso). The current Criminal
Procedure Code of 2004 establishes trial-avoiding conviction mechanisms in Art. 293 and Art. 350
et seq.
9
Turner [1970] 2 QB 321.
10
1996 refers to the introduction of the simplified proceeding that was an earlier version of the
current settlement proceeding that was introduced in 2004 (Sillaots 2004:116).
11
BGBl. I 2009, S. 2353, Gesetz zur Regelung der Verständigung im Strafverfahren (Law
Regulating Understandings in Criminal Procedure).
12
The date refers to the German Strafverfahrensordnung (Criminal Procedure Code) of 1877 that
included a penal order procedure since its inception. However, it is important to mention that
individual German states adopted the penal order earlier. The first equivalent to a penal order
proceeding was introduced in the Kingdom of Prussia in 1846 and then spread in the German Reich
(Altorfer, 1966:30).
13
The “waiver procedure”, the Hungarian equivalent to plea bargaining, was introduced by a 1998
law which ended up entering into force in 2003. It is now called “agreements on the admission of
guilt” under the new criminal procedure law that took effect on July 1, 2018. The penal order was
adopted by Act no. XXXIII. of 1896 that came into effect on January 1, 1900.
14
Art. 265A et seq. of the Code of Criminal Procedure.
15
According to Strang, Indonesian police have an informal plea bargaining system used in cases
where the police want to obtain a defendant’s cooperation in exchange for dropping other charges
against the defendant. In this non-regulated mechanism neither the court nor the prosecutor are
involved (Strang 2008:fn 71). In 2012, the drafters of a new criminal procedure bill introduced a
Special Procedure inspired by American plea bargaining (Ramadhan 2014:92-3). By 2018, this
bill had still not been passed. See Tristanto 2018.
16
We are referring here to the Israeli Supreme Court case Bahmoutzki (1972) 26(i) P.D. 543 that
was the first thorough decision about the legitimacy of plea bargaining and its requirements.

Japan 200417 1885
Latvia 2004 2005
Macedonia 2010 2004
Malaysia 2010
Moldova 2003
Montenegro 2009 2004
Netherlands 2006
New Zealand 201118
Nicaragua 2001
Nigeria 2002
Panama 2008
Peru 199419
Philippines 194020
Poland 1997 192821
Portugal 1987
Romania 2010
Russian Federation 2001
Scotland 199522
17
The 2004 date in Table 1 refers to the introduction of the speedy trial procedure, regulated at
one time in Criminal Procedure Code, Art. 350-2, and currently in Art. 350-16 of this code. This
procedure does not formally skip the trial but shortens it in a way that it typically becomes a
formality. The speedy trial procedure is not widely used. A different revision to the criminal
procedure law (passed through Act No. 54 of 2016 and coming into effect on June 1, 2018) has
also been compared to plea bargaining because it allows for negotiations between prosecutors and
defendants. However, the latter is a cooperation agreement mechanism that does not necessarily
lead to a conviction without a trial because, for instance, all charges against a cooperating
defendant may be dismissed.
18
The practice was incorporated in the Criminal Procedure Act 2011, pt 1 s 60 (N.Z). In 2000,
the case of R v Gemmell [2000] 1 NZLR 695 (CA) acknowledged that sentence indications were
a common practice but did not set any regulations for it. See also Hessell v R [2010] NZDC 135,
[2011] 1 NZLR 6.
19
The date refers to Act No 26320 of 1994 on drug-related offenses. The current trial-avoiding
conviction mechanisms in Peru are indicated in the Appendix to this piece.
20
The General Order N° 58 from 1900 already included the guilty plea. But plea bargaining was
introduced as a rule in the Philippines as of July 1, 1940, when the 1940 Rules of Courts took
effect (Section 4, Rule 114).
21
After Poland became independent in 1918, the penal order was regulated in Polish territories by
Austrian, German and Russian criminal procedure laws which were still binding. In 1928 the law
introducing the new Code of Criminal Procedure of Poland allowed issuing penal orders in minor
criminal cases.
22
Criminal Procedure (Scotland) Act 1995 s 196 (establishing that the guilty plea could be taken
into account in order to reduce the sentence imposed on the offender). However, it has been
possible for an accused to avoid trial in the most serious cases by pleading guilty since 1828
(Willock 1966:196-197). Besides plea bargaining, in Scotland another way to avoid full blown
trials is the conditional offer of a fixed penalty, popularly known as fiscal fines. Under Scottish
legislation, if an accused person acquiesces to a fiscal fine, it is not considered to be a conviction
nor will it be recorded as such—though it may be taken into account in sentencing the offender
should he be convicted of another offense at a later date. See Art. 302 c) and e) of the Criminal

Serbia 2009 2001
Slovenia 2012 2003
South Africa 1999/200123 195524
South Korea 1954
Spain 188225 2015
Sweden 1942
Switzerland 2007 200726
Taiwan 2003/200427 193528
Ukraine 2012
United Arab Emirates 201829
Procedure Act of 1995. For this reason, we consider the fiscal fine similar neither to plea
bargaining nor to penal orders because it does not lead to a criminal conviction.
23
At least as formal recognition. Before 1999, plea agreement was an informal practice. North
Western Dense Concrete CC v Director of Public Prosecutions (Western Cape), 1999 (2) SACR
669 recognized and regulated the practice. Act 62 of 2001 added statutory recognition and
regulation of plea agreements to the South African Criminal Procedure Act, S. 105A.
24
This refers to the current “Admission of Guilt Fine” established in Criminal Procedure Code of
1977, Section 57. But Section 57 is the functional equivalent of a similar provision that appeared in
the previous Criminal Procedure Act 56 of 1955.
25
This date refers to the regulation of the conformidad (conformity) mechanism in the original Ley
de Enjuiciamiento Criminal (Criminal Procedure Act) of 1882, Art. 655, 688, 694-695. They were
even earlier precedents of this mechanism in Spain from the mid nineteenth century (see Thaman
2010:345, citing Rodríguez García N. 1997. El Consenso en el Proceso Penal Español). The scope
of application and the use of this mechanism has been widely expanded in the last few decades
with the adoption of Ley Orgánica 7/1988 of December 28, 1988, and Ley 38/2002 and Ley
Orgánica 8/2002 of October 24, 2002.
26
Both the “accelerated proceedings” (Art. 358 et seq. of the Swiss Criminal Procedure Code can
be considered equivalent to plea bargaining) and the “Summary Penalty Order Procedure” (Art.
352 et seq. of the Swiss Criminal Procedure Code, establishing penal order proceedings) were first
introduced on the federal level by the Swiss Criminal Procedure Code of 5 October 2007 which
entered into force on 1 January 2011. On the cantonal level especially, the penal order proceedings
have a much longer tradition. The Canton of Aargau, inspired by similar proceedings in German
law, was the first to introduce penal order proceedings in 1868 (Altorfer 1966:33; Bolliger
1953:17; Thommen 2013:25). In Aargau, a judge still had to approve of and formally issue the
penal order. Zürich was the first canton to introduce a penal order in 1919 in which the prosecutor
(district attorney) was allowed to issue the penal order by himself (Thommen 2013:25). The
accelerated proceedings were first introduced in the cantons of Ticino (1999), Basel-Landschaft
(2000) and Zug (2003).
27
Simplified proceedings were adopted in 2003, and plea bargaining was introduced in 2004,
coming into effect in April of that year (Wang 2011:11).
28
Summary procedure has existed since 1935 (Su 2017:209).
29
The Federal Criminal Procedures Law (which applies to all seven Emirates) was amended by
Federal Decree by Law No. 17 of 2018 whereby the penal order mechanism is now applicable to
all seven Emirates. Dubai adopted the penal order in 2017. (Dubai Law No. 1 of 2017; Dubai
Resolution No. 88 of 2017.)

United States 1970/197530
Uruguay 2016
Venezuela 199331
Sources: Legal experts’ input, statutes, judicial opinions and secondary literature on reported jurisdictions as described in detail in the Appendix at
the end of this piece.
Table 1 includes data about plea bargaining—i.e., understandings, agreements or

negotiations by which the defendant enters a formal guilty plea in exchange for some potential
benefit such as a charge, fact or sentence reduction or change. It considers as equivalent to plea
bargaining procedural mechanisms that enable a criminal conviction without a trial in exchange
for some potential benefit, as long as the defendant admits his guilt and/or accepts before a court
the application of the mechanism to his case. Table 1 also includes data about penal orders that are
typically applied to non-serious offenses and through which the prosecutor requests a sentence that
becomes final, if the court formally approves it and the defendant does not oppose the application
of the mechanism to her case. (There is variation in the exact regulation and requirements of penal
orders in different jurisdictions and some, for instance, do not require a formal approval by the
court.)
Table 1 distinguishes between penal orders and their variants and plea bargaining and its
variants because of the different origins and features of these two mechanisms. Germany was
among the first to adopt the penal order (Thaman 2012:159) as a way to deal with minor criminal
offenses through fully written proceedings in which the sentence proposed by the prosecutor
becomes final with the court’s approval if the defendant does not object (StPO §§407-412). Plea
bargaining originated in common law jurisdictions whose proceedings have long used guilty pleas
as a way to adjudicate any type of criminal case, hence opening the door for explicit or implicit
understandings, agreements or negotiations over the pleas. Despite these different origins and
features, all the mechanisms listed in Table 1 share in common that they enable reaching a criminal
conviction against an individual without having to hold a trial and based on the individual’s
admission of guilt or explicit or implicit consent to the application of the mechanism.
Table 1 shows that plea bargaining and other trial-avoiding conviction mechanisms are not
a fully new phenomenon of the last few decades. In common law jurisdictions, guilty pleas have
been a well-established feature for centuries, and there were instances or practices of
understandings, agreements or negotiations about guilty pleas going back far in time (Fisher 2003;
30
Brady v. United States, 397 U.S. 742 (1970). Federal Rule of Criminal Procedure 11 was
amended to explicitly recognize and regulate plea bargaining by the Federal Rules of Criminal
Procedures Amendments Act of 1975 (PL 94-64).
31
The date refers to the adoption of the “corte de la causa en providencia” that was introduced by
the Ley de Beneficios en el Proceso Penal (Law of Benefits in the Criminal Process), Gaceta
Oficial N° 4.620 de fecha 25 de agosto de 1993, articles 9, 10, and 11, that, in minor cases,
established that a criminal case could move directly to the sentencing phase if the defendant
admitted his guilt. This regulation was a precedent for the “procedimiento por admisión de los
hechos” (admission of the facts proceeding) introduced as part of the Criminal Procedure Code
reform of 1998 (art. 376). See Vásquez González 2008:215.

Smith 2005). For these jurisdictions, we include in Table 1 the year in which plea bargaining was
formally adopted by statute or was formally approved by high courts (as indicated in the Appendix
at the end of this piece). The Philippines formally recognized plea bargaining in 1940. Among
civil law and other non-common law jurisdictions, jurisdictions like Germany, Hungary, Italy,
Japan, Poland, South Africa, South Korea, Spain, Sweden and Taiwan had already adopted penal
orders or other trial-avoiding conviction mechanisms in the nineteenth century or the first decades
of the twentieth century.
Though there are earlier examples, Table 1 also shows that plea bargaining and other trial-
avoiding conviction mechanisms have spread widely in the last few decades in criminal procedure
codes and other statutes or by recognition and approval of high courts among the jurisdictions in
our sample.32 In fact, of the 57 countries covered in our sample that have adopted at least one trial-
avoiding conviction mechanism, 46 had no trial-avoiding conviction mechanism formally
acknowledged by statute or approved by a high court before 1970. Between 1970 and 1979, five
countries adopted or formally recognized at least one type of trial-avoiding conviction mechanism
for the first time; between 1980 and 1989, one country did; between 1990 and 1999, 15 countries
did; between 2000 and 2009, 17 countries did; and between 2010 and 2018, eight countries did.
Since as of 1970 11 countries in our sample had formally adopted for the first time a trial-
avoiding conviction mechanism, this means that 10% of the remaining countries (i.e., five out of
the remaining 49 countries) formally adopted or recognized at least one of these mechanisms in
the 1970s. 2% formally adopted or recognized one of these mechanisms (i.e., one out of the
remaining 44) in the 1980s. 35% of the remaining countries (i.e., 15 out of 43) did so in the 1990s.
61% of the remaining countries (i.e., 17 out of 28) did so in the 2000s. 73% of the remaining
countries (i.e., eight out of 11) did so in the 2010s (though our data do not cover the year 2019).
Further research is necessary to cover more jurisdictions and to continue analyzing the trend of
this diffusion phenomenon going forward.
In the case of the United States, there is a rich historical literature on the causes of the
adoption and expansion of plea bargaining in the nineteenth century, well before plea bargaining
was recognized and validated by statutes and the U.S. Supreme Court. Historians have proposed
different theories for this rise, including caseload pressures, increasing complexity of the criminal
trial, institutional changes and professionalization in policing and prosecution, and socio-political
pressures exogenous to the court room (see Smith 2005 for a summary of this literature). There is
no parallel literature of qualitative or quantitative empirical studies (for instance, in the tradition
of institutional sociology) on the causes of the contemporary adoption of trial-avoiding conviction
mechanisms globally or even in specific jurisdictions other than the U.S.
32
International human rights bodies and international criminal jurisdictions have also accepted
and put some limits on the use of these mechanisms. See, e.g., Natsvlishvili and Togonidze v.
Georgia, European Court of Human Rights, Application no. 9043/05, Judgment, 29 April 2014;
Communication No. 2005/2010, Human Rights Committee, CCPR/C/115/D/2005/2010, 19
February 2016; The Prosecutor v. Ahmad Al Faqi Al Mahdi, International Criminal Court, Trial
Chamber VIII, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016; Bachmaier (2018);
Carlson (2018); Combs (2007); Langer (2005).

Rather than empirically exploring its causes, the existing literature has typically reported
the reasons invoked by a legislature, ministry of justice or operators of the criminal justice system
for the adoption of these mechanisms. These reasons include an increasing case docket, improving
a criminal justice system’s efficiency in managing its cases, the pressures that new defendants’
rights might put on the efficiency of the criminal process, increasing conviction rates and fighting
impunity, reducing pretrial detention, protecting the rights of victims, improving the ability of a
criminal justice system to deal with complex cases, and allowing for cooperation agreements with
defendants to tackle corruption and organized crime (Langer 2004; Iontcheva Turner 2009; Lewis
2009; Thaman 2010; Fair Trials 2017).
Other possible causes for the adoption of these mechanisms have not been invoked or have
been invoked less often by legislatures, ministries of justice and courts. These include the adoption
of adversarial criminal procedure codes (e.g., Latin American jurisdictions) (Langer 2007),
cultural and political influence from the United States and other jurisdictions and international
agencies over third jurisdictions (Langer 2004), a transnational trend towards delegating more
procedural power to prosecutors (Jehle & Wade 2006; Langer 2006; Langer 2007; Luna & Wade
2010; Luna & Wade 2012), and the self-interest of judges, prosecutors and defense attorneys who
may welcome these mechanisms as a way to have lighter workloads (Bergman et al. 2017) or as a
way to increase their authority and power (Langer 2004).
The empirical qualitative and quantitative exploration of the reasons for the adoption of
these mechanisms in individual jurisdictions, throughout specific regions, or across the globe could
be part of a global research agenda on this topic. Analysis of the reasons for the adoption of these
mechanisms should also include jurisdictions that have not adopted the mechanisms, like the three
included in our sample in Table 1.
II. Empirical Studies of Plea Bargaining and Other Trial-Avoiding Mechanisms in

Individual Jurisdictions
As part of this article’s overview of plea bargaining around the world, this section reviews
the empirical studies on plea bargaining and other ways to reach a conviction without a trial in
individual jurisdictions. But the review of this section is cursory because most empirical studies in
individual jurisdictions do not discuss the global trends that are the focus of this piece.
Despite justified complaints that there is insufficient research on guilty pleas and plea
bargaining in the United States (Johnson et al. 2016: 480-2), there is a rich tradition of qualitative
and quantitative studies of plea bargaining in the United States compared to work done on other
countries, as shown below. Qualitative studies relying on proceedings observation or on interviews
or case studies covering one or more U.S. jurisdictions, sometimes combined with individual case-
level data analysis, have studied issues such as how and why guilty pleas are used to adjudicate
most criminal cases and why so few defendants raise their criminal procedure rights (Feeley 1979);
the ways prosecutors, defense attorneys and judges are socialized into the use of plea bargaining
and how they and their organizations constitute workgroups that produce guilty pleas (Eisenstein
& Jacob 1977; Heumann 1977; Feeley 1979); how prosecutors use the law in order to encourage
or obtain guilty pleas (Alschuler 1968; Lynch 2016); what role judges play in the bargaining
10

process (Iontcheva Turner 2006; King & Wright 2016); how plea bargaining works in white collar
cases (Mann 1985); and how it works in misdemeanor cases and lower courts (Feeley 1979;
Kohler-Hausmann 2014; Kohler-Hausmann 2018). These studies are important for this article’s
argument on the administratization of criminal convictions because they have documented how
the large majority of criminal cases are adjudicated without a trial, and how police and prosecutors’
decisions are often dispositive of criminal cases in the United States.
There have also been criminological, economic, psychological and socio-legal studies that
are more quantitative (for a review of this literature, see Johnson, King, and Spohn 2016), based
on individual case-level data, experiments and surveys examining. Studies have reached opposite
conclusions on whether there is a plea discount or trial penalty for those who do not plead guilty;
some studies concluded that there is not a trial penalty (LaFree 1985; Smith 1986; Abrams 2011;
Abrams 2013), while other studies concluded that there is such a trial penalty (e.g., Kim 2015;
Ulmer, Eisenstein & Johnson 2009). Relatedly, the literature has discussed whether plea discounts
can be explained using a focal concerns perspective or operate under “the shadow of the trial”
(e.g., Bushway, Redlich & Norris 2014). There have been studies on what factors impact
prosecutors’ charging and plea bargaining decisions, including evidentiary factors, pretrial
detention, victims’ and defendants’ characteristics (such as gender, race, willingness to testify and
prior record), sentencing guidelines, and prosecutors’ reelection pressures (Bandyopadhyay &
McCannon 2014; Kutateladze et al. 2012; Kutateladze et al. 2015; Rehavi & Starr 2014; Shermer
& Johnson 2010; Spohn et al. 2001; Vance & Oleson 2013). There have been quantitative
empirical studies based on individual case-level data, exoneration data, surveys and experiments
regarding whether, to what extent and why innocent defendants plead guilty (Dervan & Edkins
2013; Redlich, Summers & Hoover 2009), whether and to what extent death penalty notices
increase the probability of defendants pleading guilty (Thaxton 2013), to what extent guilty pleas
have contributed to wrongful convictions (Gross 2008: 180-1), and whether and to what extent
plea bargaining affects sentences (Piehl & Bushway 2007).
There have been empirical studies on trial-avoiding mechanisms in some non-U.S.

jurisdictions, though they are fewer in number and often use a smaller set of research
methodologies and tools and theoretical perspectives. For instance, in England and Wales,
qualitative studies based on interviews, surveys and other techniques showed that despite claims
that plea bargaining was not practiced there, implicit and explicit bargains on guilty pleas and
pressure to plead guilty actually did take place, and analyzed the specific contours of these
practices (Baldwin & McConville 1977). Studies also concluded that a substantial percentage of
defendants who plead guilty claim to be innocent and their cases are likely to end with an acquittal
at trial (Baldwin & McConville 1977:59-82), and explored the attitudes of the general public,
crime victims, witnesses and offenders toward plea sentencing reductions, finding, for example,
that there is more support for sentencing reductions for guilty pleas entered early in the criminal
process (Dawes et al. 2011). There has also been a recent wave of quantitative empirical studies
on sentencing based on individual case-level data obtained from the release of judicial sentencing
surveys that have used multivariate regression analyses and concluded that almost all defendants
that plead guilty receive a discount of one third or less, that these discounts largely comply with
the sentencing discounts established by English law, and that there is no substantial evidence of
disparity among the courts in sentencing, but that there is some unwarranted sentencing disparities
11

among cases among offense categories and other case or defendant characteristics (see, e.g.,
Roberts & Bradford 2015; Pina-Sánchez et al. 2018).
In Germany, empirical studies relying on surveys or interviews mostly of judges,

prosecutors and defense attorneys have documented the practice of German agreements or
understandings (for summaries of these studies, see Altenhain et al. 2013:12-15; Locker 2015:37-
51). These studies have examined the percentage of criminal verdicts reached through an
agreement, with practitioners reporting that between 16% and 36.5% of verdicts, and between 27%
and 61.5% of white-collar-crime verdicts, are reached through them (Schünemann 1990:18;
Altenhain et al. 2007:33, 35, 79, 331 et seq.; Altenhain et al. 2013:31-36). Studies have also
reported that the rate of use of agreements varies by the number of trials a judge has, by the judge’s
age and gender, and by type of court or by region (Altenhain et al. 2013:41 et al.). Always
according to self-reporting by practitioners, there would be between one fourth to one third
reduction in sentence after an agreement (Altenhain et al. 2013:115-117, 130-131); and judges
rarely deviate from the range of sentences indicated in the agreements (Altenhain et al. 2013: 136-
142). These studies have also analyzed to which types of crimes and cases the agreements are
mostly applied (finding that they were applied in high percentages to economic and drug offenses)
(Hassemer & Hippler 1986:361, 363; Schünemann 1990:18; Altenhain et al. 2013: 58-61); who
initiates conversations about the agreements (finding judges to have an important role in this
regard) (Taubald 2009:49; Altenhain et al. 2013:65-69); who participates in the discussions over
the agreements (finding defendants typically are excluded) (Altenhain et al. 2013:70-76); why
judges, prosecutors and defense attorneys enter into agreements (Altenhain et al. 2013:46-61); and
to what extent German judges, prosecutors and defense attorneys meet the requirements of the
agreements as established by guidelines or rules set by judicial decisions and by statute
(concluding that they often circumvent these requirements) (Altenhain et al. 2007:331 et seq.;
Altenhain et al. 2013:36-39, 44, 70, 76-106, 117-119, 145-159, 165-170, 181-184). There has also
been work exclusively on agreements before white collar crime courts (Altenhain 2007; Siolek
1993). The main limitations in the German studies come from their predominant reliance on
surveys and interviews. These types of studies are prone to self-reporting bias risks and their unit
of analysis is not the individual case or defendant, but the interviewee. A use of a larger set of
methodologies would help address these limitations.
In France, there have been empirical studies done by economists, sociologists, legal
scholars and official bodies based on interviews, surveys, observations, the collection of individual
case-level samples from individual jurisdictions and official data. These studies have found that
different offices of the prosecutor and jurisdictions use the plaider coupable (the French equivalent
of plea bargaining) to substantially different degrees (Danez 2013; Desprez 2007:147-8). Studies
have reported that it is the prosecutor, typically based on information provided by the police, that
decides whether to use the plaider coupable on a given case, and that there is no charge bargaining
between prosecution and defense. However, possibly due to different practices between French
jurisdictions, qualitative studies have differed on whether there is negotiation over the sentence
between prosecution and defense (Desprez 2007:151-4; Soubise 2018:406-8, 418-20). Studies
have also explained that since the participation of a defense attorney is required for the plaider
coupable but can be waived for trials, prosecutors may exercise pressure on defendants to accept
being tried without a lawyer (Soubise 2018:416-8). Also possibly due to variation among French
jurisdictions, studies have reached different conclusions on whether sentences of effective
12

imprisonment are used for defendants who plead guilty (Ancelot & Doriat-Duban 2010/1; Desprez
2007:148-9; Houllé & Vaney 2017:6; Saas et al. 2013). Studies have also documented that while
in some jurisdictions the prosecutor does not participate in the public hearing to approve the
proposed sentence and the hearing takes place in a courtroom, in others, the prosecutor does not
participate in the hearing and the hearing takes place in an office (Desprez 2007:148, 158,160-1).
The interview of the defendant with the prosecutor may take between 15 and 20 minutes, while
the public hearing to approve the proposed sentence by the judge may take between two and three
minutes (Desprez 2007:162). Judges approve the sentence proposed by the prosecutor in the large
majority of cases and they only reject it when the defendant does not appear before the court
(Warsmann 2005:33; Desprez 2007:153, 165-9; Perrocheau 2010/1:67). The majority of cases
adjudicated through the plaider coupable and penal orders take between three and six months
(Danet et al. 2013:270, 275, 288-9). There have also been studies reporting demographic data on
defendants who plead guilty under the plaider coupable and penal orders (Lenoir et al. 2013), and
multivariate regression analysis based on a sampling of individual cases has found that the location
of the court affects sentencing outcomes of defendants who plead guilty, but that the type of
lawyer, the level of resources and the gender of the defendant do not (Ancelot & Doriat-Duban
2010/1). Studies have also concluded that the plaider coupable and penal orders in combination
with diversion mechanisms have produced a net-widening effect by diminishing the percentage of
criminal cases that are dismissed unconditionally (Grunvald 2013). Importantly for this article’s
argument that there is a global trend towards the administratization of criminal convictions, a
number of these empirical studies have concluded that the introduction of these mechanisms in
France have increased the power of the police, prosecutors and other administrative staff over
criminal cases (Desprez 2007; Grunvald 2013; Perrocheau 2010/1; Soubise 2018) and replaced
trials (Desprez 2007).
In Canada, a few studies, using a variety of methodologies, have documented the contours
of plea discussions and plea agreements there (Ericson & Baranek 1982:111-78). Individual
studies have also examined the attitudes and views of police officers on plea bargaining in impaired
driving cases (Jonah et al. 1999), by crown attorneys on plea bargaining and dangerous offenders
(Bonta et al. 1996), and by the public on plea bargaining more generally (Cohen & Doob 1989).
Studies have also examined what factors affect the likelihood of plea bargaining (Kellough &
Wortley 2002); the effect of initial guilty pleas on the final disposition of the case (Hagan 1974);
and whether plea bargaining results in significant concessions to the accused (Solomon 1983). (For
a summary of the empirical bibliography on plea bargaining in Canada, see Verdun-Jones 2016.)
There have also been more isolated efforts to understand other jurisdictions based on
official statistics, observations of criminal proceedings, interviews and individual case-level data.
In Latin America, there have been only a few academic studies based on official data, interviews
and court observations (see, e.g., Cioccini 2018 on the province of Buenos Aires, Argentina) and
on a random sampling of cases as part of a broader study of and brief reports on the operation of
the criminal process in a few jurisdictions (see, e.g., Bergman et al. 2017 on the city of Buenos
Aires, Argentina; Fondevila et al. 2016 on the state of Mexico, Mexico). For at least one of the
mentioned jurisdictions these studies have provided data about the frequency of trial-avoiding
conviction mechanisms and other basic information about them (Bergman et al. 2017); analyzed
the low accountability of the police towards the defense, the prosecution and the judges when cases
are adjudicated through these mechanisms (Fondevila et al. 2016); documented a gap between
13

legal regulations and the actual practice of these mechanisms (Bergman et al. 2017); and described
the attitudes of and criticisms made by prosecutors, judges and defense attorneys regarding trial-
avoiding conviction mechanisms, among other issues (Cioccini 2018).
Based on a variety of methodologies, there have been also studies on the contours of trial-
avoiding conviction mechanisms in individual jurisdictions such as the state of Victoria, Australia
(Flynn & Freiberg 2018 on plea negotiations), China (McConville & Choong 2011:266-272 on
summary trial before the 2012 revision) and Russia (Semukhina & Reynold 2009). Studies on
individual jurisdictions have also examined what factors affect the defendant’s decision to plead
guilty (Cheng 2013 and Cheng et al. 2018 on Hong Kong) and whether defendants get sentencing
discounts for consenting to the application of trial-avoiding conviction mechanisms (for a brief
review of two studies on Russia, see Solomon 2012). There have also been studies on public
knowledge and public attitudes towards trial-avoiding conviction mechanisms in Hong Kong
(Cheng 2016), Israel (Herzog 2004) and Russia (Semukhina & Reynold 2009).
While these studies represent important efforts, it is fair to say that the empirical study of
plea bargaining and other trial-avoiding conviction mechanisms in individual jurisdictions around
the globe is still in its infancy. For many countries and jurisdictions, there are not even official
statistics on the frequency with which these mechanisms are used and there has not been academic
research studying how plea bargaining and other trial-avoiding conviction mechanisms work in
practice and how they interact with other phenomena. Even countries and jurisdictions for which
there are data and studies on these mechanisms, important research methodologies and tools (such
as participant or proceedings observation, interviews, randomized, natural or quasi-experiments
and multivariate analysis) and theoretical perspectives (ranging from critical social theory to
economic analysis) have been largely or fully absent. The recent wave of empirical studies in
England and Wales based on the release of the Crown Court Sentencing Survey shows how
important it is that courts, offices of the prosecutor, public defender offices, sentencing
commissions and other public agencies create and make available (and facilitate researchers’
sampling of) individual case-level data to at least have observational data that enable more
empirical studies on individual jurisdictions. It is also important that these organizations, their
employees and other people that participate in the administration of criminal justice be opened to
observation studies, interviews and surveys.
Given how important these mechanisms have become, understanding what factors drive them,
the frequency with which they are used, how and why they are used, by whom they are used and
their effects are crucial to understanding how the administration of criminal justice works in many
corners of the world.
While a few of these empirical studies have highlighted how plea bargaining and other trial-
avoiding conviction mechanisms have empowered prosecutors (e.g., Alschuler 1968; Desprez
2007; Grunvald 2013; Lynch 2016; Perrocheau 2010/1; Soubise 2018)), these studies have not had
a comparative perspective that would enable an assessment of regional or global trends, something
that this article’s description of the phenomenon of administratization of criminal convictions tries
to do.
14

Also, only a handful of these empirical studies, predominantly on the United States, have
theorized on the significance of plea bargaining and other trial-avoiding conviction mechanisms,
generally concentrating instead on how they may be part of broader managerial trends in criminal
justice away from adjudication (Feeley 1979; Kohler-Hausmann 2014; Kohler-Hausmann 2018;
Soubise 2018). But these empirical studies have not discussed the phenomenon of
administratization of criminal convictions covered in this article.
There is a non-empirical legal literature on criminal justice in the United States that has how
prosecutors have become de facto adjudicators of criminal cases in administrative-like proceedings
(Lynch 1998; Barkow 2006; Langer 2006). However, as it will be discussed in more detail later,
this non-empirical literature has not concentrated on the police and other administrative agencies
other than offices of the prosecutor. In addition, for the most part this literature has not had a
comparative dimension and has not studied regional and global trends.
III. The Comparative Study of Plea Bargaining, Trial-Avoiding Conviction Mechanisms

and the Global Administratization of Criminal Convictions
The comparative law literature has noticed the spread of plea bargaining around the world
and has described the differences among trial-avoiding conviction mechanisms (Langer 2004;
Iontcheva Turner 2009; Thaman 2010; Hodgson 2015; Iontcheva Turner & Weigend 2019). There
was also a recent NGO study on this trend (Fair Trials 2017). Statutes and judicial opinions have
varied in approach, including the type of criminal offenses to which trial-avoiding conviction
mechanisms are applied (e.g., all crimes versus less serious crimes); what may be consented to or
negotiated among the different participants (e.g., some jurisdictions accept charge, fact and
sentence bargaining while others only accept sentence bargaining); the role that prosecutors,
defense attorneys, judges, victims and others may or may not play in trial-avoiding conviction
proceedings (e.g., some jurisdictions accept the participation of the court or the victim in
negotiations or require the victim’s consent while others do not); whether the defendant has to
admit the commission of the offense or may simply consent to the application of the trial-avoiding
conviction proceeding; whether all defendants in a case have to accept the application of the trial-
avoiding conviction mechanism for the mechanism to be applied; when the trial-avoiding
conviction mechanism may apply (e.g., at any point during formal proceedings or only after the
pretrial phase is over); what information and evidence the defense gets access to before consenting
to the application of the trial-avoiding conviction mechanism; and what other requirements the
trial-avoiding conviction mechanisms have to meet (Langer 2004; Langer 2006; Iontcheva Turner
2009; Thaman 2010; Hodgson 2015; Iontcheva Turner & Weigend 2019). There have also been a
few qualitative comparative studies on the use of these mechanisms in two or more jurisdictions
(e.g., Iontcheva Turner 2006).
To move beyond formal legal analysis and comparison between statutes and judicial
decisions and engage in a comparative socio-legal analysis of the diffusion of plea-bargaining-
type of mechanisms across jurisdictions, one has to discuss two issues.
The first issue is to which universe of legal regulations, mechanisms and practices does
plea bargaining belong. In this regard, this article considers that plea bargaining is a way to reach
15

a conviction without a trial and should thus be analyzed together with other mechanisms used to
reach criminal convictions without a trial. An important trend in the comparative criminal justice
and criminal procedure literatures has instead been considering plea-bargaining-like mechanisms
as one type of “procedural mechanisms alternative to the trial” or “consensual criminal
procedures.” In addition to plea bargaining, these categories would also include mechanisms such
as dismissal with conditions, victim-offender conciliation/mediation, and simplified and
abbreviated trial proceedings (see, e.g., Thaman 2010; Tulkens, Cartuyvels & Wattier 2002). This
approach presents several challenges for a meaningful comparison among jurisdictions. The first
problem is that it groups within the same universe criminal justice regulations, mechanisms and
practices that may have very different functions and bring about very different legal consequences.
For instance, while victim-offender conciliation/mediation may aim to be a non-punitive response
to a set of criminal offenses, guilty pleas, plea bargains, penal orders and equivalent mechanisms
are by definition punitive since they are a way to reach criminal convictions and punishment.
Another challenge for the “procedural mechanisms alternative to the trial” or “consensual
criminal procedures” approach is that one may not be able to make a meaningful comparison of
the criminal justice mechanisms and practices grouped into these categories without looking at the
whole universe of criminal justice dispositions. For instance, one may not meaningfully compare
dismissals with conditions in different jurisdictions (such as those based on diversion or the
opportunity principle) without also analyzing formal and informal dismissals without conditions
in those jurisdictions. However, making such a panoramic comparison of criminal jurisdictions
across the world is often impossible given the unavailability of data and that there are certain
dispositions, such as informal dismissals by the police, that may not be measurable. In addition, a
meaningful comparison of all criminal dispositions in multiple criminal jurisdictions requires a
theory of what one wants to study and the “procedural mechanisms alternative to the trial” or
“consensual criminal procedures” analyses often do not articulate such a theory.
In order to tackle this first issue, this article proposes to use the concept of “trial-avoiding
conviction mechanism” as a way to define and identify the relevant universe of legal regulations,
mechanisms and practices that plea-bargaining-type mechanisms belong to.33 Guilty pleas and plea
bargaining are ways to reach a criminal conviction without a trial. Consequently, despite formal
differences between different procedural mechanisms in different jurisdictions, one can analyze
plea bargaining within the universe of procedural mechanisms that jurisdictions use to reach a
criminal conviction without a trial.
Classical empirical studies in the United States in the 1960s characterized plea bargaining
as “conviction without trial” and even used the concept to compare different American
33
The concept of “trial-avoiding conviction mechanism” includes any procedural mechanism that
enables reaching a criminal conviction without a trial. As such, it is different from the concept
“trial-waiver system” recently used by Fair Trials 2017:2-3 in its global survey. Among other
reasons, this is because Fair Trials’ concept includes cooperation agreements that may be used
neither to reach a criminal conviction against a cooperating defendant, nor to avoid the trial against
the cooperating defendant. In other words, cooperation agreements may include dismissal of all
charges against a cooperating defendant or a sentence reduction after a cooperating defendant is
tried.
16

jurisdictions (Newman 1966). The concept has also been used by comparative law analyses (see,
e.g., Heberling 1973; Van Claeve 1997). But the concept of “conviction without trial” (i.e., “trial
avoiding conviction mechanisms”) has not been used for a global socio-legal perspective like the
one pursued in this article that identifies a global trend in criminal adjudication in many
jurisdictions around the world and provides a meaningful framework for multi-country
comparisons in this regard.
The comparison of these mechanisms should be relevant given that, while there is variation
among jurisdictions in the way criminal convictions are recorded (Aebi et al. 2014/2017:148, 262)
and in the implications of a criminal conviction (see, e.g., Pinard 2010), typically a criminal
conviction: 1) is a public pronouncement that communicates that an individual has been found
guilty of the commission of a criminal offense; 2) is a precondition for the application of
punishment (fines, probation, prison, death penalty, etc.); 3) may bring the forfeiture of property
connected to the crime; 4) enables collateral consequences (such as restrictions on the ability to
vote, to run for office, to work, to access public housing, etc.); and 5) labels a person as someone
with a criminal record. These five features are true of criminal convictions in most of the world.
In this sense, criminal convictions are a particular, distinctive and quasi-global legal artifact.
This does not mean that the study of how criminal convictions are produced could also not
be part of broader panoramic perspectives on how criminal convictions fit within the whole set of
criminal dispositions in criminal justice systems. However, since at their core guilty pleas and plea
bargains are a way to produce convictions without a trial, the production of convictions without a
trial provides a criterion to define a universe of procedural regulations, mechanisms and practices
that they belong to. In addition, even if the analysis of criminal convictions can be later integrated
into the whole set of criminal dispositions, we can study methods of conviction and learn
something significant about criminal justice systems and adjudication processes given the
importance and the distinctive features of criminal convictions.34
The second issue one has to engage with to analyze the diffusion of plea-bargaining-type
mechanisms around the world is what the meaning and implications of such a diffusion are. Some
literature has looked for deeper trends and explored whether the diffusion and application of trial-
avoiding conviction mechanisms across specific jurisdictions has changed the way lawyers
understand the criminal process and Americanized and adversarialized the adopting jurisdictions
(Langer 2004) and whether it has contributed to empowering prosecutors around the world (Jehle
& Wade 2006; Langer 2006; Luna & Wade 2010; Luna & Wade 2012; Langer & Sklansky 2017).
34
This applies even for trial-avoiding conviction mechanisms that deal with minor cases such as
penal orders. An anonymous reviewer argued that one cannot meaningfully study penal orders
without also studying conditional dismissals given that they apply in similar cases. However, if,
for instance, in a given jurisdiction an increase in the use of penal orders were accompanied by a
decrease in the use of conditional dismissals, it would still be significant that a higher number of
defendants have been convicted for the commission of an offense and thus gotten a criminal record.
The point is that one can meaningfully study penal orders within the universe of trial-avoiding
conviction mechanisms and learn something important and meaningful about a given criminal
justice system, even if the study of penal orders could also be part of a different study of a broader
or different set of criminal dispositions, such as conditional dismissals.
17

This article argues that the spread and adoption of plea bargaining and other trial-avoiding
conviction mechanisms imply a global trend that this article calls the administratization of criminal
convictions. Criminal convictions have been administratized in two ways. First, the adoption of
plea bargaining and other trial-avoiding conviction mechanisms has given a larger role to non-
trial, non-judicature adjudicators in deciding who gets convicted and for which crimes. These
actors include prosecutors, the police and other administrative agencies. Second, these
mechanisms are implemented through proceedings that reach criminal convictions while
circumventing the trial and the rights and requirements associated with it, such as publicity,
confrontation, cross-examination, compulsory process, proof beyond a reasonable doubt and the
right against self-incrimination. The defendant’s admission of guilt or formal consent is assumed
to legitimatize the application of these mechanisms.
The concept of administratization of criminal convictions does not assume an idealized

picture of criminal trials. It acknowledges that defendants in many cases in many jurisdictions do
not meaningfully exercise their trial rights. But around the world, judges and jurors are the ultimate
trial adjudicators, criminal trials tend to be public, and defendants have a number of formal trial
rights that they may exercise. In contrast, when convictions are reached without a trial, the police’s
and prosecutor’s investigations and charging decisions have a larger weight in who gets convicted
and for which crime. They make these investigations and decisions in non-public proceedings, and
the defendant waives his formal trial rights.
The concept of administratization of criminal convictions builds upon the literature on

prosecutors becoming the de facto sole adjudicators of many criminal cases that have been
identified in the United States and Europe (Lynch 1998; Barkow 2006; Jehle & Wade 2006; Langer
2006; Luna & Wade 2010). It includes this phenomenon of prosecutors as de facto sole
adjudicators but it is broader. The administratization of criminal convictions also includes cases
that are adjudicated with substantial participation and decision-making power and authority by the
police and other administrative agencies—i.e., not only by prosecutors. The administratization of
criminal convictions also includes procedures in which prosecution and defense co-adjudicate the
criminal case—i.e., in which the prosecutor is not the de facto sole adjudicator—as long as these
criminal convictions are reached without a trial. In addition, while the literature on prosecutors as
de facto judges has concentrated on a whole array of criminal justice decisions (e.g., not only
convictions, but also conditional and unconditional dismissals, indictments, etc.), the concept
proposed in this article concentrates on how criminal convictions are produced.
The concept of administratization of criminal convictions also enable us to clearly

distinguish this global trend in criminal adjudication from other phenomena such as convictions
reached through negotiation or through coercion. Convictions reached without a trial may or may
not include negotiations between the defense and the prosecutor or the court. They may or may
not include coercion against the defendant, like the coercion involved when prosecutors threaten
defendants with disproportionate sentences if they do not accept to being convicted without a trial
(Langer 2006). However, what defines these mechanisms is neither negotiation nor coercion, but
the mechanisms’ administrative character.
18

Let’s discuss a few trial-avoiding conviction mechanisms to illustrate these points.35 Plea
bargaining in the United States provides the first illustration of this phenomenon. The adjudication
model established by the U.S. Constitution and its amendments includes a trial by jury in which
defendants exercise their right to counsel, confrontation, cross-examination, compulsory process
and proof beyond a reasonable doubt and their right against self-incrimination. But in plea
bargaining, the defendant pleads guilty and waives his trial rights in exchange for a charge, fact or
sentence reduction or other sort of concession (e.g., Federal Rules of Criminal Procedure, Rule
11). In plea bargaining, the court has the formal role of checking that the guilty plea is voluntary
and intelligent and that there is a factual basis for it, but a de facto adjudicator of criminal cases
and criminal convictions is the prosecutor who, either by herself or in combination with the
defense, often decides who gets convicted through her control over charging, underlying facts and
even sentencing (Lynch 1998; Barkow 2006; Langer 2006). Since the defendant waives his trial
rights and his right to a trial by pleading guilty, there is no trial to hold the police and other
investigative agencies accountable and the prosecutor provides the main screening of the work by
the police. This means that plea bargaining empowers not only prosecutors but also the police and
other administrative agencies in deciding who gets convicted and for which crimes (Skolnick
2011).
Other common law jurisdictions also use guilty pleas extensively as a way to adjudicate
criminal cases and use explicit negotiations between the prosecution and defense or implicit or
explicit understandings between the defense and the judge to encourage guilty pleas and avoid
trials (Brook et al. 2016). For instance, in England and Wales, guilty pleas in the criminal process
and sentencing discounts for defendants who plead guilty have existed for a long time (Royal
Commission on Criminal Justice 1993:110; Beard 2017; Baldwin & McConville 1977; Baldwin
& McConville 1979). Judicial decisions, statutes and sentencing guidelines have created incentives
for defendants so that the earlier they plead guilty, the higher the sentencing discounts they get
(e.g., R v Hollington and Emmens (1986) 82 Cr. App. R. 281; Criminal Justice and Public Order
Act of 1994, Section 48 (replaced); Criminal Justice Act 2003, Section 144(1); Sentencing
Guidelines Council 2007; Sentencing Council 2017). Recent empirical studies have concluded that
courts in fact substantially follow and respect this pattern in their sentencing decisions (Roberts &
Bradford 2015; Pina-Sánchez et al. 2018). This empowers police and prosecutors since defendants
have incentives not to challenge the police’s investigations or prosecutors’ decisions and to shorten
the pretrial judicial process as much as possible (McConville 2002:367; McEwan 2011:540-3).
Judges are also allowed to tell the defense upon its request what the maximum sentence for
the defendant would be if the defendant pleads guilty (R v. Goodyear [2005] EWCA Crim 888),
another way to encourage guilty pleas. In addition, courts have considered it to be accepted practice
for the prosecution and defense to hold off-the-record discussions over the charges, their
underlying facts or indications of the sentence in exchange for guilty pleas (McKinnon v. United
35
The four jurisdictions that will be discussed in the following paragraphs (the United States,
England and Wales, France and Chile) were chosen because their trial-avoiding conviction
mechanisms present substantial formal variation among themselves; two are civil law and two are
common law jurisdictions; two jurisdictions are from the Americas and two are European; and
three jurisdictions are considered developed and one jurisdiction is considered a developing
country.
19

States, (2008) UKHL, 59, [2008] 1 WLR 1739, Lord Brown) and the Code for Crown Prosecutors
9.1-9.7 (2018) explicitly accepts the possibility of charge and fact bargaining.
There are important formal and substantial differences between plea bargaining in the
United States and in England and Wales. For instance, the Attorney General’s guidelines do not
permit Crown prosecutors to grant immunity (Brook et al. 2016), there has been formal emphasis
in England on encouraging early guilty pleas through an established sliding sentencing discount
schedule and judges may have a larger role in encouraging guilty pleas and may retain more
sentencing power in England and Wales than in the federal system and several other jurisdictions
in the United States (Ashworth & Roberts 2013) (though not in all of them, see Iontcheva Turner
2006; King & Wright 2016). Without denying the importance of these differences, the result is
similar to what happens in the U.S. When defendants in England and Wales are convicted on the
basis of their guilty pleas, convictions get administratized since police and prosecutors have a large
role in the determination of who gets convicted and for which crime, and the process of guilt
determination does not include the procedural rights and safeguards of the traditional English and
Welsh trial and is rather largely legitimized by the defendant’s formal consent to a conviction
without a trial.
Without underestimating the substantial degree of variation in the form and practice of
guilty pleas and plea bargains within and among common law jurisdictions (Brook et al. 2016;
Iontcheva Turner 2006; King & Wright 2016), there is arguably even more variation in trial-
avoiding conviction mechanisms across civil law and other non-common law jurisdictions (Langer
2004). This is the case because, while in common law jurisdictions there is typically a single set
of legal arrangements to reach a criminal conviction without a trial (i.e., guilty pleas and implicit
or explicit agreements, negotiations or incentives to plead guilty), in many non-common law
jurisdictions there are multiple legal arrangements to achieve a criminal conviction without a trial.
For instance, Chile introduced a new Criminal Procedure Code between 2000 and 2005
that establishes an oral and public trial in which the defendant has classical trial rights such as the
right to counsel, confrontation, cross-examination, compulsory process and proof beyond a
reasonable doubt (Chilean Criminal Procedure Code, Art. 340; Langer 2007). This oral and public
trial is held in front of a criminal trial court composed of three professional judges— there is no
trial by jury in Chile. But the same code also establishes three other ways in which a defendant
may be convicted. All three are formally adjudicated by a single judge in a criminal court called
the Court of Guarantees whose role also includes checking and supervising the pretrial
investigation by the Public Prosecutor Office and deciding matters presented by the parties in an
adversarial fashion at the pretrial stage of the proceedings (see, e.g., Riego 2008).
First, the procedimiento monitorio (admonitory proceedings), like penal orders in other
jurisdictions, allows the prosecutor to propose a penalty of a fine in petty crime cases (faltas) that
becomes effective if the judge formally approves the fine and the defendant does not object to the
fine (Chilean Criminal Procedure Code, Art. 392). If the defendant pays the fine within fifteen
days of being notified of it, the fine is reduced by one fourth (Art. 392, c)).
Second, the juicio simplificado con reconocimiento de culpabilidad (simplified trial with
admission of guilt) applies to cases in which the prosecutor requests a penalty of up to 540 days
20

of imprisonment (Chilean Criminal Procedure Code, Art. 388, and Criminal Code, Art. 56) and in
which the defendant admits guilt. The prosecutor may reduce the recommended sentence (Criminal
Procedure Code, Art. 395). In the case of theft and robbery, the prosecutor may request the
application of a sentencing range lower than that which would otherwise be applicable, which may
enable the defendant to receive a suspended sentence of imprisonment (Criminal Procedure Code,
Art. 395, second paragraph; Riego 2017). If the prosecutor requests this simplified trial and the
defendant admits his guilt, the court may enter a conviction without a trial (Chilean Criminal
Procedure Code, Art. 395). The court may not impose a punishment greater than the one requested
by the prosecutor (Chilean Criminal Procedure Code Art. 395, third paragraph). Unlike with other
crimes, in cases of theft and robbery the judge is not allowed to apply a sentencing range lower
than the default established for these crimes unless the prosecutor so requests; and when a
defendant has a prior conviction, the judge is required to apply the upper half of the sentencing
range, unless the prosecutor requests a lower sentence (Chilean Criminal Code, Art. 449; Criminal
Procedure Code, Art. 395, second paragraph; Riego 2017).
Third, the procedimiento abreviado (abbreviated proceedings) applies to cases in which

the prosecutor requests a punishment of up to ten years of imprisonment for theft and robbery or
up to five years of imprisonment for other crimes, and the defendant has to admit his guilt and
consent to the application of the abbreviated proceedings to his case (Chilean Criminal Procedure
Code, Art. 406). The prosecutor may consider the admission of guilt by the defendant to be an
attenuating circumstance of collaborating with authorities in establishing the facts (Art. 407,
paragraph 3). If an indictment has been issued, the prosecutor is allowed to amend the charges or
the requested sentence in order to make the abbreviated proceedings applicable (Art. 407,
paragraph 3). In the case of theft and robbery, if the defendant admits his guilt, the prosecutor may
request the application of a sentencing range lower than that otherwise applicable, which may
enable the defendant to receive a suspended sentence of imprisonment (Art. 407, paragraph 4;
Riego 2017). Before entering a conviction, the judge has to check at a hearing that the defendant’s
consent is free and voluntary, that the defendant knows of his right to demand a full blown trial,
and that he understands the terms of the agreement and the consequences that may follow from it
(Art. 409). The judge may not impose a punishment higher than the one the prosecutor requested
(Art. 412). Unlike with other crimes, in the case of theft and robbery the judge is not allowed to
apply a sentencing range lower than the default established for these crimes unless the prosecutor
so requests; and when a defendant has a prior conviction, the judge is required to apply the upper
half of the sentencing range, unless the prosecutor requests a lower sentence (Chilean Criminal
Code, Art. 449; Ar. 407, paragraph 4; Riego 2017).
These three Chilean mechanisms differ in important respects. The procedimiento monitorio
applies to petty crimes, does not require a hearing, does not explicitly leave room for negotiations
over punishment, and assumes that the defendant consents to the application of the procedure if he
does not explicitly object. As such, this mechanism resembles penal orders in other jurisdictions.
The juicio simplificado applies to criminal offenses with up to 540 days of imprisonment, aims at
skipping the pretrial phase and moving the case toward resolution through an admission of guilt
or a trial in front of a single judge, leaves room for negotiations between prosecution and defense,
and requires the court to explicitly ask the defendant whether he admits the commission of the
offense. The procedimiento abreviado applies to even more serious cases in which the defendant
may receive up to ten years of imprisonment in the case of theft and robbery, requires the defendant
21

to explicitly admit his guilt and consent to the application of the abbreviated proceedings, leaves
room for negotiations over the defendant’s consent, and requires that the judge check that the
defendant’s admission of guilt and consent are voluntary and intelligent.
These Chilean mechanisms also differ in important ways from American and English and
Welsh plea agreements. For instance, while American and English and Welsh plea agreements
may in principle apply equally to any crime, the Chilean mechanisms do not apply to the most
serious crimes and have specific regulations to encourage their application to theft and robbery
cases. In addition, since the victim of the crime or other parties with interest in the results (such as
public enforcement agencies) may be a private prosecutor who works jointly or in parallel with
the public prosecutor in Chile, the private prosecutor may have somewhat formalized procedural
powers to question the application of the procedimiento abreviado (Chilean Criminal Procedure
Code, Art. 408). Also, at least in theory, in Chile the judge may still acquit a defendant that has
admitted his guilt and consented to the application of the procedimiento abreviado (Art. 412;
Falcone Salas 2005), which, according to statistics we received from the Chilean judiciary as part
of the research for this project, happens in approximately 1% of the cases disposed of in this type
of proceeding.
Studying the differences among trial-avoiding conviction mechanisms in different

jurisdictions can provide important insights into many phenomena including, for instance, whether
and to what extent the predominant Anglo-American adversarial conception of the criminal
process has been adopted in other jurisdictions and internalized by operators (Langer 2004),
whether there are negotiations between the defense and the prosecutor or the judge, and whether
and in which ways public officials exercise coercion over the defendant (Langer 2006). However,
what these three Chilean proceedings share with the American and English and Welsh plea
agreements is that they all imply an administratization of criminal convictions since they all enable
reaching a criminal conviction without an oral and public trial and its associated rights and they
all give the police and the prosecution an important role in deciding who gets convicted, for which
crimes, and even what the sentences will be.36 In addition, in all of these mechanisms, the
defendant has to admit his guilt or consent to the application of the mechanism.
France provides another illustration of this phenomenon. The French Criminal Procedure
Code of 1958 establishes an oral and public trial as the main adjudication mechanism in which the
defendant is entitled to exercise classical trial rights. The most serious criminal offenses are
adjudicated by a mixed court composed of professional judges and lay people (cour d’assises)
(French CPC, Art. 240 et seq.), the intermediate criminal offenses by three professional judges
(tribunal correctionnel) (French CPC, Art. 398) and the least serious criminal offenses before one
professional judge (tribunal de police) (French CPC, Art. 523).
36
In this sense, since the Chilean criminal procedure reform was part of the wave of adversarial
criminal procedure reforms in Latin America documented by Langer 2007, future research could
explore whether this wave of adversarial reforms brought with it an administratization of criminal
convictions in the region.
22

However, there are also two ways in which a criminal defendant may be convicted without
37
a trial. The first is the ordonnance pénale (penal order) that was introduced in France in 1972 for
petty offenses and later extended in 2002 to intermediate offenses before the correctional tribunal
(Pouget 2013:60-62). The prosecutor may apply this procedure to certain criminal offenses (such
as theft, receiving stolen goods, theft of services, destruction of public and private property and
use of illegal drugs) before the correctional tribunal. The requirements for its application include
that the police investigation indicate that the facts alleged against the defendant are simple and
established and provide sufficient information on the personality of the defendant, the charges and
the resources of the defendant for the purposes of sentencing. It is also required that it be
unnecessary to apply an imprisonment sentence or fine above a certain amount against the
defendant given the low seriousness of the offense, and that the use of the procedure does not
undermine the rights of the victim (French CPC, Art. 495). Without a trial, the president of the
correctional tribunal issues a penal order, acquitting or convicting and sentencing the defendant to
a fine, unless he estimates that a trial would be useful or that an imprisonment sentence should be
applied to the case (French CPC, Art. 495-1). The penal order is then transmitted to the prosecutor,
who may object to it or execute it. Once notified of the penal order, the defendant has 45 days to
object to it and ask for a public trial before the correctional tribunal. With the notification of the
penal order, the defendant is informed that the correctional tribunal could set a punishment of
imprisonment if found guilty at trial. Lack of objection by the defendant to the penal order makes
it executable against him (French CPC, Art. 495-3). Similar though less detailed and demanding
regulations apply to penal orders for petty offenses before the police tribunal (French CPC, Art.
524-528-2).
The other trial-avoiding conviction mechanism is the compuration sur reconnasaince

préalable de culpabilité (appearance on prior acknowledgement of guilt), also known as plaider
coupable (guilty plea), that was introduced in France in 2004 and that, with a few exceptions,
applies to all criminal offenses with a penalty of up to ten years of imprisonment (French CPC,
Arts. 495-7 and 495-16). The prosecutor may, by his or her own motion or by request of the defense
attorney or the defendant, use this procedure as long as the defendant admits guilt (French CPC,
Art. 495-7). The prosecutor may propose a penalty to the defendant, including an imprisonment
sentence as long as it is not more than one year nor more than half the penalty established for the
offense (French CPC, Art. 495-8). A defense attorney has to be present during the admission of
guilt by the defendant and the sentence proposal by the prosecutor (French CPC, Art. 495-8). Once
the defendant agrees with the sentence proposed by the prosecutor, the prosecutor has to request
its approval (homologation in the French original) by a judge who, at a public hearing, must hear
the defendant and his defense attorney, verify the accuracy of the admitted facts and their legal
characterization, and may then approve the punishment proposed by the prosecutor, articulating
the grounds for his or her decision (French CPC, Art. 495-9). These grounds must include the
verification of the admission of guilt and consent to the penalty by the defendant with his attorney
present and that the proposed sentence is justified by the circumstances of the offense and the
37
The composition is another mechanism in French law that has been compared to plea bargaining
that has been analyzed elsewhere (e.g, Langer 2004:58-62). However, it is not analyzed it here
since the composition is not a way to reach criminal convictions. Rather, it is a diversion
mechanism through which, if the defendant fulfills certain conditions, the case gets dismissed. See
Code Procédure Pénale, Art. 41-2.
23

personality of the offender (French CPC, Art. 495-11). The prosecutor does not need to be present
at the hearing (French CPC, Art. 495-9). If the judge does not agree with and does not approve the
proposed sentence (something that, according to statistics and studies, occurs in between 0 to 3.3%
of the cases (Desprez 2007:153, 165; Warsmann 2005:33)), the prosecutor may continue with the
prosecution through the other available proceedings (French CPC, Art. 495-12).
There are important differences between penal orders and the appearance on prior
acknowledgment of guilt in France. For instance, the latter applies to a larger range of crimes,
allows for an imprisonment sentence, and requires that the judge hold a public hearing before
deciding whether the agreement should be approved. There are also important differences between
these mechanisms and U.S. plea bargaining. For instance, the French mechanisms apply to only a
subset of crimes, the defendant may not waive his right to an attorney before pleading guilty under
the comparutation sur reconnaissance préalable de culpabilité, and the French mechanisms do
not typically involved the heavy-handed techniques by prosecutors that we find in a subset of U.S.
plea bargains (Langer 2006). However, without underestimating these differences among trial-
avoiding conviction mechanisms (that have to be studied as part of the empirical and normative
assessment of these mechanisms), these mechanisms administratize criminal convictions in France
since they give more authority and power to the police and prosecutors to decide who gets
convicted, for which crimes and with which sentence, in proceedings that do not include a trial
with its attached defendants’ rights. In fact, French and comparative scholars have noticed how
the introduction of the plaider coupable has enhanced the power of the police and prosecutors over
these criminal cases (Colson & Field, 2011:61-62; Desprez 2007; Grunvald 2013; Perrocheau
2010/1; Soubise 2018) and replaced the trial in France (Desprez 2007).
This section has argued that the diffusion of trial-avoiding conviction mechanisms has
implied an administratization of criminal convictions. In all of these mechanisms, the defendant is
not convicted after a trial in which evidence is produced and tested by the defendant exercising his
trial rights to confrontation, cross-examination, compulsory process, and against self-incrimination
in a public hearing that anyone may attend. Rather, the defendant is convicted on the basis of
evidence gathered by the police and the prosecution that, at most, is checked by a judge or tribunal
before entering a conviction and that is assumed to be legitimized through the defendant’s
admission of guilt or consent.
Some of these mechanisms—such as a portion of American and English plea agreements

and the Chilean procedimiento abreviado and juicio simplificado con reconocimiento de
culpabilidad—may include negotiations between the defense and the prosecution or the judge on
what potential benefit the defendant would get if he admits his guilt or consents to the application
of the trial-avoiding conviction mechanism. These negotiating mechanisms may also include
negotiations between these actors in which the defendant may get some potential benefit in
exchange for providing information or testimony against his accomplices or other people involved
in the commission of crimes. When trial-avoiding mechanisms involve understandings or
negotiations regarding collaboration of this sort, they can be considered functionally related to
other legal tools that do not avoid trial but still encourage defendants to admit their guilt or provide
information and testimony against other people in exchange for potential benefits, such as a
mitigation of sentence after the trial.
24

But negotiation is not what characterizes trial-avoiding conviction mechanisms as a whole.
In a number of these trial-avoiding conviction mechanisms, such as the Chilean procedimiento
monitorio, the prosecutor proposes a sentence without even first talking with the defense. In
England, the sentencing discounts for guilty pleas are established by statute and thus the defense
often does not even engage in a conversation with the prosecution before the defendant enters a
guilty plea. In France, there may be a conversation between the prosecutor and the defendant about
the sentence proposed by the prosecutor, but, at least in some jurisdictions, these conversations do
not include a negotiation or back-and-forth on the potential punishment (Desprez 2007:151-4).
Even in the United States, many plea agreements are not true negotiations but “more akin to
modern supermarkets, in which prices for various commodities have been clearly established and
labeled in advance” as Malcolm Feeley (1979:187) classically put it.
Similarly, some of these mechanisms—such as some American plea bargains and the
Chilean procedimiento abreviado for thefts and robberies—may use coercion against the
defendant since, for instance, they may threaten defendants with disproportionate penalties if they
do not plead guilty or accept the application of the trial-avoiding conviction mechanism. But
coercion is not what characterizes trial-avoiding conviction mechanisms as a whole. In a number
of these trial-avoiding conviction mechanisms, such as the Chilean procedimiento monitorio or the
French ordonnance pénale, prosecutors do not typically threaten defendants with disproportionate
penalties if they challenge the use of these mechanisms to reach a criminal conviction.
Rather, the common thread among these mechanisms is administratization. Convictions

based on the defendant’s consent and on evidence collected in these administrative proceedings
give more power to the police, other administrative agencies and the prosecutors who run these
proceedings to the extent that they are not challenged or made accountable through a trial and since
their decisions to arrest and charge an individual for a certain offense may be, de facto, the final
or close to final verdict. Also, their decisions in this regard may not be accessible or transparent to
third parties, citizens and the media.
Since many of these trials-avoiding conviction mechanisms may only be applied if the
prosecutor requests or at least consents to their application, this authority also empowers
prosecutors vis-à-vis defendants and judges (and juries in jurisdictions that have them). The
defendant may still choose to go to trial but, due to lack of information or appropriate advice, the
defendant may not be fully aware that he can do so. Also, even when the defendant has sufficient
information, by choosing to go to trial, he often gives up some real or apparent benefit that comes
attached to the application of the trial-avoiding conviction mechanism. These powers thus may
also make the prosecutor’s decision to charge a given individual for a given crime, and even the
prosecutor’s recommendation on sentencing, the final decision in the case (Langer 2006).
The phenomenon of administratization of criminal convictions raises important public

policy questions even when there is neither negotiation nor coercion. The public policy questions
that administratization of criminal convictions raise include: 1) which public officials, professions
and actors should be deciding upon criminal convictions (police officers, other administrative
agencies, prosecutors versus judges and jurors); 2) what procedures should be used to make
decisions about criminal convictions; 3) what procedures and safeguards should be established to
hold the police, administrative agencies, prosecutors, judges and the administration of criminal
25

justice accountable for their work; 4) is the use of trial-avoiding conviction mechanisms
appropriate for all criminal offenses or only a subset of them; and 5) what requirements and
safeguards should be established to enable trial-avoiding conviction mechanisms to advance the
goals of the criminal process, such as adequately distinguishing between guilt and innocence,
treating people fairly and holding the administration of criminal justice accountable to society.
This does not mean that all trial-avoiding conviction mechanisms and criminal justice systems are
created equal regarding these questions and other public policy questions one could raise.
However, these are questions that all jurisdictions should confront when discussing whether they
should adopt trial-avoiding conviction mechanisms or amendments to them, which mechanisms
and amendments they should adopt, which requirements and safeguards these mechanisms and the
criminal justice system should include, what data should be collected on these mechanisms and
criminal justice systems, and what should be studied, reported, and monitored regarding these
mechanisms.
From a socio-legal perspective, given the importance and distinctive features of criminal
convictions, we can study methods of conviction and learn something important about criminal
justice systems and adjudication processes. We should continue to study the different ways
jurisdictions produce and regulate criminal convictions through different trial-avoiding
mechanisms (Langer 2004), and whether and to what extent they use negotiation and coercion.
But we can simultaneously acknowledge that there may be a common kernel or phenomenon that
may be a fruitful subject for criminological and socio-legal study. The questions that empirical and
legal studies have analyzed regarding plea bargaining and other trial-avoiding conviction
mechanisms in individual jurisdictions could thus be redefined as questions about how and why
criminal convictions are produced, including how and why criminal convictions have been
administratized and what effects and implications this administratization has had.
For instance, who are the decision-makers in the administratization of criminal conviction
in different jurisdictions? How are judges, prosecutors, defense attorneys and others socialized
into the use of these methods and do they work as a team to produce the defendant’s consent to
adjudicating his case without a trial? Are these mechanisms applied differently to defendants
depending on the defendants’ class, race, ethnicity, religion, gender, sexual orientation,
immigration status, etc.? Have defendants, victims, their attorneys or others resisted the
administratization of criminal convictions and have they been disciplined in any way for doing so?
How have they been disciplined? Do the sentences set at administratized criminal processes
operate under the shadow of the trial? What factors lead defendants to consent to the
administratization of their criminal convictions? Do innocent defendants consent to application of
these mechanisms? With what frequency? Studying these and other questions is beyond the scope
of this article but could be part of a researcher’s future agenda.
Reframing these questions as questions on administratization of criminal convictions is not

just a semantic point. Given the variety of and differences between plea bargaining, penal orders
and other trial-avoiding conviction mechanisms not only among jurisdictions, but even within
them, it may seem challenging at first, if not impossible, to study these mechanisms together and
to determine whether there are global trends in criminal adjudication and what those global trends
might be. The concepts of trial-avoiding conviction mechanism and administratization of criminal
convictions are a way to capture a global trend in the administration of criminal justice in different
26

jurisdictions, enabling comparison among jurisdictions and the study of the relationship between
the administratization of criminal convictions and other phenomena.
One issue that could be explored in this regard is how the gap between the promise of an
oral and public trial with its associated rights and the reality of administratization of criminal
convictions is justified and what institutional and social functions are at play in different
jurisdictions.
Another issue that could be explored is whether the global trend toward the
administratization of criminal convictions is part of a global trend toward the administratization
of criminal adjudication and criminal justice more generally that could include not only trial-
avoiding conviction mechanisms, but also other formal and informal criminal dispositions and
mechanisms such as formal and informal dismissals by the police, unconditional and conditional
dismissals by the police, prosecutors and judges, pretrial supervision, mediation and other
alternative dispute resolution mechanisms, and acquittals. One could also explore whether the
administratization of criminal convictions is part of a widespread weakening of the accuracy and
perceived fairness of adjudicative processes or even a global move toward a managerial model of
criminal law administration in which (unlike in the adjudication model) actual guilt becomes
irrelevant and in which these mechanisms are part of a broader array of tools to mark, sort,
supervise and regulate certain populations (Kohler-Hausmann 2014; Kohler-Hausmann 2018;
Natapoff 2018).
Such an analysis could also be part of future research on plea bargaining and other trial-
avoiding conviction mechanisms. However, regardless of whether this trend toward
administratization of criminal convictions is part of one or more of these other shifts, this
administratization is a phenomenon that deserves study in its own right given how distinct the
criminal conviction is and what the administratization of criminal convictions already tells us
about the criminal justice system.
IV. The Rate of Administratization of Criminal Convictions
Section III defined the phenomenon of administratization of criminal convictions and

illustrated it through the analysis of plea bargaining, penal orders and related trial-avoiding
conviction mechanisms in multiple jurisdictions. But even if the administratization of criminal
convictions can be considered, at a certain level, a single phenomenon, this does not mean that it
is present to the same extent in every jurisdiction. Is there a way to measure the degree of
administratization in a given jurisdiction? This section articulates the rate of administratization of
criminal convictions (RACC) as the percentage of criminal convictions that are reached through
trial-avoiding conviction mechanisms out of the total number of convictions (obtained through
these mechanisms and through trial) in a given jurisdiction.
RACC = Number of Convictions Obtained through Trial-Avoiding Conviction Mechanisms

Total Number of Convictions
27

Figure 1 indicates the rate of administratization of criminal convictions in 26 jurisdictions.
Figure 1. Rate of Administratization of Criminal Convictions in 26 Jurisdictions
100
90
80 1.2
70 49 0.6
60
50 94 91 95 98 98
40 81 0.1 90 15 83 90 38 79 87
65 64 69 35
30 52 61 2.1
20 42 42 33 7
31 29 25
10 19 16 21 22
0 2.5
Penal Order Plea Bargaining
Sources: Data reported by official agencies, in official reports and in academic research from surveyed jurisdictions
as described in detail for each individual jurisdiction in the Appendix at the end of this piece.
Figure 1 shows high variation in the use of guilty pleas, plea bargaining, penal orders and
equivalent trial-avoiding conviction mechanisms, with the extremes being a rate of
administratization of only 21% in Panama and a rate of 98% in New Zealand and the United States.
What explains the variation in the rates of administratization of criminal convictions among these
26 jurisdictions?
A first possible hypothesis is that this variation comes from the differing regulation of trial-
avoiding conviction mechanisms since, as we have seen, some jurisdictions allow for the use of
these mechanisms for all criminal offenses, while other jurisdictions exclude their use for serious
or the most serious offenses. One could thus expect that, everything else being equal, the former
jurisdictions have a higher rate of administratization of criminal convictions than the latter.
28

Figure 2. Does at Least One Trial-Avoiding Conviction Mechanism Apply to All Crimes?
Does At Least One Trial-Avoiding Conviction Mechanism Apply to All Crimes?

100
New Zealand
United States
Estonia Israel
Chile Australia
90 England and Wales
Taiwan Scotland
Russian Federation
Colombia
80
Switzerland
70 Germany
Argentina Georgia
Admin Rate
60 Slovenia
Costa Rica
Italy
Bulgaria
50
France
Czech Republic
40
Croatia
30 Netherlands
Latvia
Peru
20 Panama
10
0 1
No 2
Yes 3
Sources: Sources indicated for Figure 1 and Criminal Procedure Codes.
However, Figure 2 suggests that the hypothesis that exclusion of certain crimes in certain
jurisdictions would lead those jurisdictions to a lower administratization rate does not seem to be
consistent with the data. If we look at the jurisdictions with the highest administratization rates,
three exclude certain crimes (Chile, Estonia and Taiwan). If we look at the jurisdictions with the
lowest rates, the three lowest (Latvia, Panama and Peru) have no established limits. The relative
irrelevance of the exclusion of certain crimes in certain jurisdictions seems plausible given that
lower criminal offenses may constitute the bulk of the caseload in most jurisdictions.
Another possible hypothesis to explain variation in the use of trial-avoiding conviction

mechanisms is caseload levels. The hypothesis is that, everything else being equal, the higher the
29

caseloads, the more pressure on the criminal justice system to use more trial-avoiding conviction
mechanisms and therefore the higher the administratization rate. (Or, the other way around, the
more a jurisdiction uses trial-avoiding conviction mechanisms, the more cases it receives.)
Figure 3. Administratization of Criminal Convictions and Formal Contact with the Police
Administratization Rate vs. Formal Contact Rate

100
United States
Australia New Zealand
Chile
Russian Federation
80 Switzerland
Colombia
Germany
Slovenia
60
Admin Rate
Italy
Bulgaria
40 Czech Republic
Croatia
Netherlands
Peru Latvia
20 Panama
0
0 500 1000 1500 2000 2500 3000 3500 4000
Formal Contact Rate
Sources: Sources indicated for Figure 1 and UNODC at https://dataunodc.un.org/crime/CJS_process. For the formal
contact with the police rate, it is used the latest available data for each jurisdiction from between 2013 and 2016 in
UNODC and the rate is calculated based on the number of contacts with the police per 100,000 people. Formal contact
with the police may include persons suspected, arrested or cautioned.
The comparison of the rate of administratization with the rate of formal contacts with the
police calculated over 100,000 people (which can include persons suspected, arrested or cautioned
and be used as a proxy for a system’s caseload) suggests that caseload variation might explain
some of the variation in the administratization rates since jurisdictions with higher
administratization rates overall have a higher rate of formal contacts with the police than
jurisdictions with lower administratization rates.
Another hypothesis is that, everything else being equal, the more punitive a system, the
more tools prosecutors and judges have to encourage defendants to accept the application of a trial-
avoiding conviction mechanism to get a sentencing discount. (Or, the other way around, the more
trial-avoiding conviction mechanisms are used, the more people get punished.)
30

Figure 4. Administratization of Criminal Convictions and Prison Population Rates
Administratization Rate vs. Prison Population Rate

100
New Zealand United States
Australia Israel
England and Wales EstoniaChile
Scotland Taiwan
Colombia Russian Federation
80
Switzerland
Germany
Argentina Georgia
Slovenia Costa Rica
Admin Rate
60
Italy
Bulgaria
France
40 Czech Republic
Croatia
Netherlands Latvia
20 Peru Panama
0
0 100 200 300 400 500 600 700 800
Prison Population Rate
Sources: Sources indicated for Figure 1 and World Prison Brief, available at http://www.prisonstudies.org/highest-
to-lowest/prison_population_rate?field_region_taxonomy_tid=All. Data for prison population rate for each
jurisdiction are from the same year or closest available year than data on rate of administratization of criminal
convictions reported in Figure 1 for each jurisdiction.
With regard to punitiveness levels, even if the upward trendline is less pronounced than
the trendline for caseload levels, the pattern indicates that a higher prison population rate correlates
with a higher rate of administratization of criminal convictions. However, these data should be
interpreted with caution because the United States could be considered an outlier in terms of its
imprisonment levels, and once the United States is removed, the upward trendline in Figure 4
flattens substantially.
In any case, if data on the rates of administratization of criminal convictions from a larger
sample of jurisdictions were collected, it would be worthwhile to test further the caseload and
punitiveness hypotheses explored in Figures 3 and 4.
Trial complexity and legal and procedural culture and models are two additional and
independent hypotheses that might explain the variation in the rates of administratization across
different jurisdictions.
31

On trial complexity, Langbein 1979-2 has argued that the trial by jury has become so
complex and long that it is not a workable way to adjudicate most criminal cases and that would
explain the rise in guilty pleas and plea bargains. By this hypothesis, one would thus expect that,
everything else being equal, jurisdictions with trial by jury would have higher rates of
administratization of criminal convictions.
Figure 5. Administratization Rate and Trial by Jury38
Trial by Jury
100
New Zealand
Israel United States
Estonia Australia
Chile England and Wales
Taiwan Scotland
Colombia Russian Federation
80
Switzerland
Germany
Argentina Georgia
Slovenia
60 Costa Rica
Admin Rate
Italy
Bulgaria
France
Czech Republic
40
Croatia
Netherlands
Latvia
20 Peru Panama
0
0.5 0.7 0.9 No 1.1 1.3 1.5 1.7 1.9 Yes 2.1 2.3 2.5
Sources: Sources indicated for Figure 1 and Criminal Procedure and Judicial Regulations.
The pattern of Figure 5 looks consistent with the hypothesis that trial by jury is correlated
with greater use of plea bargaining and other trial-avoiding conviction mechanisms since most
jurisdictions with trial by jury are within the 80-100% range, while the bulk of the non-trial by
jury jurisdictions are below 80%. However, one should be cautious in the interpretation of these
data given that jurisdictions with trial by jury substantially overlap with common law jurisdictions
that present a predominantly adversarial conception of the criminal process, variables that seem to
have a higher explanatory value than the trial by jury hypothesis, as discussed in the following
paragraphs.
38
A mixed court (one that includes professional and lay judges who deliberate and adjudicate
together) is not considered a trial by jury for the purposes of Figure 5 since it does not have the
issues that, according to Langbein, would make trials by jury so long, such as jury selection process
before trial and jury instructions. In fact, Langbein himself contrasted the Anglo-American trial
by jury to German mixed courts.
32

A final hypothesis on legal and procedural culture and models is based on Langer 2004,
which argued that there could be a relationship between accepting and using plea bargaining (and
other trial-avoiding conviction mechanisms) and a predominant party-driven conception of the
criminal process in a given jurisdiction because these mechanisms afford the parties a large say in
the adjudication of the case. Legal actors educated and socialized in common law adversarial
systems would thus consider the use of guilty pleas, plea bargaining and other trial-avoiding
conviction mechanisms a natural phenomenon (Langer 2004). By this hypothesis, one would
expect that, everything else being equal, the more important the adversarial ideology or structures
of interpretation and meaning in a given jurisdiction (Langer 2004), the larger the rate of
administratization of criminal convictions.
Figures 6a and 6b provide elements to assess this hypothesis.
Figure 6a. Administratization Rate and Legal Tradition
Civil vs. Common Law

100
New Zealand
Estonia United States
Chile Israel
Scotland Australia
Taiwan England and Wales
Russian Federation
80 Colombia
Switzerland
Germany
Argentina
Georgia
Slovenia
Admin Rate
60 Costa Rica
Italy
Bulgaria
France
40 Czech Republic
Croatia
Netherlands
Latvia
20 Peru
Panama
0
0.5 0.7 0.9 1.1 1.3 1.5 1.7 1.9 2.1 2.3 2.5
Civil Mixed Common Law
Sources: Sources indicated for Figure 1 and Comparative Law Literature.
33

Figure 6b. Administratization Rate and the Adversarial and Inquisitorial Systems
Adversarial vs. Inquisitorial

100 New Zealand
United States
Estonia Israel
Chile Australia
Scotland
Taiwan England and Wales
Russian Federation
80 Switzerland Colombia
Germany Argentina
Georgia
Slovenia
60
Admin Rate
Costa Rica
Italy
Bulgaria
France
Czech Republic
40
Croatia
Netherlands
Latvia
Peru
20 Panama
0
0.5 0.7 0.9
Inquisitorial 1.1 Recent
1.3More Adversarial
1.5 1.7Code 1.9 2.1
Adversarial 2.3 2.5
Sources: Sources indicated for Figure 1 and Criminal Procedure Codes.
The hypothesis regarding legal and procedural culture and models seems to be consistent
with the data in Figures 6a and 6b since common law jurisdictions that conceive of the criminal
process in adversarial, party-driven terms have higher administratization rates. In this sense, it is
worth noting that all common law jurisdictions have predominantly adversarial conceptions of the
criminal process and have a rate of administratization of criminal convictions within the 90-100%
range. In contrast, the bulk of civil law jurisdictions have a rate of administratization below 80%.39
39
This explanation is related to the ones advanced by the legal origins literature that use legal
traditions as independent or instrumental variables to explain different phenomena, such as levels
of corruption and the size of equity markets, and emphasize the flexibility of common law
jurisdictions (for a brief review, see, e.g., Spamann 2015:135-7). But while the legal origins
literature has concluded in multiple studies that the common law has features that are correlated
with positive outcomes, such as lower levels of corruption or larger equity markets, the descriptive
statistics presented in this piece do not suggest that common law is superior to civil law since
having a high rate of administratization of criminal convictions would not necessarily be a positive
feature of the administration of criminal justice.
34

Inquisitorial jurisdictions have a rate of 80% or below, while civil law jurisdictions that have
recently introduced more adversarial criminal procedure codes range from 21% to 93.5%
administratization rates.
The group of jurisdictions that have adopted more adversarial codes in recent years should
be disentangled further since there is wide variation in how adversarial these codes are and since
these reforms have been implemented to different degrees. For instance, while the Chilean
Criminal Procedure Code conceives of the criminal process as driven by the parties before a
passive court, the Bulgarian, Croatian and Latvian codes have a less adversarial conception of the
criminal process. In addition, not only does it reflect a less adversarial conception of the criminal
process, but the Peruvian Criminal Procedure Code also has been more gradually and more poorly
implemented than the Chilean code (Ponce Chauca 2008; Salas Beteta 2011). Thus, a number of
actors in jurisdictions like Peru may not have fully internalized the new system or have not been
subjected to the appropriate incentives and may thus be more reluctant about the widespread use
of these mechanisms than those in traditional common law jurisdictions (Langer 2004).
Similarly, the Estonian Criminal Procedure Code of 2004 has a more adversarial
conception of the criminal process than the Latvian Criminal Procedure Code of 2005. The
differences in the rate of administratization of criminal convictions between neighbors Estonia and
Latvia may also be partially the result of different degrees of implementation of recent reforms,
since Estonia has persistently introduced multiple judicial and criminal procedure reforms to
overcome Soviet inquisitorialism to an extent that Latvia has not appeared to do (Solomon
2015:168-170). In addition, partly responding to the right-to-speedy-trial cases by the European
Court of Human Rights, Estonia has introduced substantial reforms to reduce the length of criminal
proceedings (Kergandberg 2012; Laffranque 2015), and, to attract investment, Estonia has
emphasized the speed of its court proceedings more generally.
There are more possible hypotheses besides the five articulated and explored here (i.e.,
exclusion of certain crimes in certain trial-avoiding conviction mechanisms, caseload levels,
punitiveness levels, trial complexity, and legal and procedural culture and systems) that may
explain the variation in the rates of administratization of criminal convictions in different
jurisdictions. Other possible hypotheses include variation in subconstitutional procedural rules
(Crespo 2018); variation in substantive criminal law that gives more or less leverage to prosecutors
to get the defendant’s consent to the application of trial-avoiding conviction mechanisms (Langer
2006); the degree of access to (appointed) counsel; pretrial detention decisions and levels;
sentencing discounts for consenting to the application of the trial-avoiding conviction mechanisms
to one’s case; the resources invested in and the number of police, prosecutors, courts and attorneys;
self-monitoring and self-assessment programs and other organizational tools by offices of the
prosecutor, courts and public defenders; media and popular influence over prosecutors and courts;
and broader institutional, economic and labor market differences among jurisdictions, just to
mention a few. The variation in the rates of administratization is a complex phenomenon that may
be explicable through multiple causes and associated with multiple phenomena.
The complexity of the phenomenon can also be observed if we compare the rate of
administratization of criminal convictions not only across jurisdictions but within individual
jurisdictions since their adoption of trial-avoiding convictions mechanisms.
35

Table 2. Rate of Administratization of Criminal Convictions over Time since Adoption of Trial-
Avoiding Conviction Mechanisms in 12 Jurisdictions
Country Years since entry into effect

(year of entry into effect) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Argentina (1997) 34 38 41 47 48 45 47 53 56 62 65 64 65
Chile (2005) 89 92 93 93 92 93 93 93 92 91 90 90 91
Colombia (2004 87 89 90 91 91 89 87 83 82 81 81
Costa Rica (1996) 47 50 56 61
Czech Republic (2012) 41 44 43 42 42
France (2004)40 10 25 29 32 34 40 39 42 44 44 47 47 48
41
Georgia (2004) 13 28 48 52 58 80 88 89 89 70 64 64
Latvia (2005) 18 20 20 21 22
42
Netherlands (2008) 5 11 24 32 31 30 25 29
Russian Federation (2001) 79 81 83 83 83
Slovenia (2003)43 22 21 24 22 24 23 23 37 48 56 58 60 63
Taiwan (2004) 86 86 85 84 85 86 87 87 87 87
Sources: Data reported by official agencies and in official reports from surveyed jurisdictions as described in detail
for each individual jurisdiction in the Appendix at the end of this piece.
Table 2 provides data about the evolution of the rates of administratization of criminal
convictions in twelve jurisdictions, taking as year 1 the year in which the jurisdiction adopted plea
bargaining or other related trial-avoiding conviction mechanisms—with data missing for several
years.
We tried to gather data from the first year (year 1) after the adoption of trial-avoiding
conviction mechanisms under the hypothesis that use of these mechanisms may increase over time
as criminal justice systems learn how to use the new mechanisms, and as individual actors may
internalize them (Langer 2004) and may adapt the mechanisms to advance their own authority,
power and self-interest (Langer 2004; Bergman et al. 2017). The data we do have on the first few
years after adoption of trial-avoiding mechanisms are generally consistent with this hypothesis
because most of these countries had an increase in the use of trial-avoiding conviction mechanisms
40
As explained in Section III, penal orders are older; here the starting point is the first year with
both penal orders and comparution sur reconnaissance préalable de culpabilité.
41
For years 2, 3 and 4, the rate is calculated from the total verdicts, not just convictions,
42
Because the penal order came into effect in February 2008, 2008 is considered year 1.
43
Plea bargaining in force since 2012. Here year 1 is 2003 to show the evolution before and after
both mechanisms were effective. The pattern of increase in the use of these mechanisms is still
observed.
36

over time. (In the case of Slovenia, this may also be the result that in year 9 (2012), guilty pleas
were added to the already-existing penal orders.)
Chile could be considered an exception because by year 2 it already has essentially the
same rate of administratization that it has maintained over time. But this may be a result of the fact
that the Chilean mechanisms were implemented as part of a broader criminal procedure reform
gradually put into effect in different phases in different areas of the country between the end of
2000 and the middle of 2005. As a consequence, by 2005 (year 1 for Chile), the new mechanisms
had already been in use in all regions of the country other than Santiago’s metropolitan region for
as much as four and a half years. In addition, Chile spent substantial resources in training the
operators of the criminal justice system before the reform was put into practice and that may have
allowed Chilean criminal justice operators to internalize the adversarial reform and to hit the
ground running when the reform came into effect in the whole country in mid-2005.
The Czech Republic might appear to be another exception because it had essentially the
same rate of administratization between year 1 and year 5. In this case, we consider 2012 as year
1 because it was the year that the “agreement on guilt and punishment” (section 175a of the
Criminal Procedure Code) was adopted and thus both types of trial-avoiding conviction
mechanisms were in place—“agreement on guilt and punishment” and “criminal orders”.
However, the Czech Republic is not an exception because over 99% of the convictions reached
through trial-avoiding mechanisms have been reached through criminal orders, the other type of
Czech trial-avoiding conviction mechanism, that, as Table 1 explains, was adopted in 1973.
It is not possible to assess whether Taiwan might be an exception because we have not
been able to obtain data for the first four years.
The data in Table 2 also suggest that in most jurisdictions the rate of administratization of
criminal convictions goes up or stays relatively flat over time. However, Colombia’s and Georgia’s
data suggest that a rate decrease is also possible. In the case of Colombia (maybe also an exception
to the hypothesis discussed in the previous paragraphs in relation to Table 2), the data refer to the
trial-avoiding conviction mechanisms that came into effect in 2005 (year 1), together with a new
more adversarial Criminal Procedure Code. The high rate of administratization in the initial years
may have to do with the challenges that prevented a higher number of trials in these years due to
the length of pretrial proceedings, insufficient training and support of prosecutors under the new
adversarial system, and logistical problems with holding trial hearings. The decrease in the rate of
administratization after 2010 may be related to the passing of punitive reforms like Law 1453 that
limited the sentence reductions for defendants pleading guilty and entering into plea agreements.
The decrease in the rate of administratization may also be a result of the difficulties the Colombian
criminal process has had in reaching criminal convictions through trials, an issue that may have
created incentives for defendants not to plead guilty and not to enter into plea agreements (Sánchez
Mejía 2017; e-mails and interview with Sánchez Mejía listed in the sources on Colombia in the
Appendix).
In the case of Georgia, the European Court of Human Rights, NGOs, the United Nations
and the U.S. State Department, among others, have criticized and subjected to scrutiny the practice
of Georgian plea bargaining because of concerns about corruption and failure to meet international
37

human rights and judicial independence standards. These concerns are based on, among other
things, Georgian plea bargaining’s low levels of fairness, accountability and transparency, the wide
use of fines in its application and the high conviction rate at trial (Coalition for an Independent and
Transparent Judiciary 2013; European Court of Human Rights, Natsvlishvili and Togonidze v.
Georgia, Application no. 9043/05, Judgment, 29 April 2014.; U.S. Department of State 2012:17-
18; U.S. Department of State 2015:24). It would be interesting to explore whether this reduction
in the administratization rate relates to these criticisms and scrutiny or to other phenomena. There
have been reports that more recently courts have been “more thorough in determining the
voluntariness of a defendant’s plea agreement and the fairness of criminal sentence agreed to by
the parties” (U.S. Department of State 2018:14). Both qualitative and quantitative empirical
research could study whether this is the case, among other issues.
Rather than arriving at definitive answers, the main point of this section has been to
illustrate the type of questions and analyses opened by the creation of a way to calculate a rate of
administratization of criminal convictions. Both quantitative and qualitative studies and analyses
could contribute to further exploration of this administratization in one or multiple jurisdictions.
V. Conclusion
This article has shown that plea bargaining, penal orders and related trial-avoiding conviction
mechanisms have been spreading in a substantial part of the world in the last five decades, and
especially in the last three. After reviewing the existing empirical literature on these mechanisms
in individual jurisdictions, this paper argued that plea bargaining, penal orders and their variations
can be conceptualized as trial-avoiding conviction mechanisms and that their spread can be
understood as a global process of administratization of criminal convictions.
These mechanisms administratize criminal convictions by giving more power to police, other
investigative agencies and prosecutors in deciding who gets convicted and for which crimes, in
proceedings that do not include a trial with its associated rights for defendants. These
administratized proceedings are assumed to be legitimized through the defendant’s admission of
guilt or formal consent to the application of these mechanisms. These proceedings may include
negotiations between the defense and the prosecutor or the judge, and/or may include coercion.
But the common thread among them is their administrative character, not negotiations or coercion.
Even when trial-avoiding conviction mechanisms include neither negotiations nor coercion
(like a subset of U.S. plea bargains), the phenomenon of administratization of criminal convictions
raises important questions for socio-legal study and for public policy. These questions include
which public officials, professions and actors are and should be deciding upon criminal
convictions; what procedures are and should be used to make decisions about criminal convictions;
and whether and to which degree trial-avoiding conviction mechanisms advance the goals of the
criminal process, such as adequately distinguishing between guilt and innocence, treating people
fairly and holding the administration of criminal justice accountable to society.
This article also articulated the rate of administratization of criminal convictions as a way to
measure to what extent jurisdictions use these mechanisms after their adoption. Our analysis
38

showed that there is wide variation among jurisdictions and within jurisdictions over time in this
rate of administratization and has explored why this may be the case.
Global empirical study of plea bargaining and other trial-avoiding conviction mechanisms is
in its infancy. This paper pointed out important gaps in the existing literature, proposed a new
framework for such a study and recommended further possible lines of inquiry.
39

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Appendix
Table 1: Plea Bargaining, Penal Orders and Related Trial-Avoiding Conviction

Mechanisms with Dates of Statutory Introduction or Recognition by High Court in 60 Countries
Table 1 covers the formal date of adoption or recognition of plea bargaining, penal orders
and equivalent trial-avoiding convictions mechanisms from as many jurisdictions as possible
across the main geographical regions of the globe. It only includes jurisdictions for which I had a
high level of confidence that the information was legally accurate. It covers these 60 jurisdictions
based on information provided by legal experts, legislation, judicial decisions and the existing
literature on plea bargaining—including on jurisdictions that do not or did not have plea
bargaining. Since these jurisdictions were not selected in a fully random way (as influential
jurisdictions like Argentina, Chile, England, France, Germany and the United States were non-
randomly included in the sample) and since it is possible that the literature on the existence or
nonexistence of plea bargaining around the world concentrates on certain jurisdictions, Table 1
cannot be said to be a representative sample of all jurisdictions in the world. However, it is
remarkable that of the 60 jurisdictions from the main regions in the world for which we found
reliable information, 57 have at least one trial-avoiding conviction mechanism and most of them
formally adopted such mechanisms in the last three decades. At a minimum, Table 1 shows that a
little less than a third of the countries in the world (57 out of 195 countries) have trial-avoiding
conviction mechanisms and that most of them adopted these mechanisms from the 1990s onwards.
It is also worth noting that about 68% of the world population lives in the 60 countries covered in
our sample.
As detailed below, we consulted 62 legal experts on 35 jurisdictions. Legal experts on

specific jurisdictions were consulted whenever there was not enough reliable secondary literature
about specific jurisdictions, when there were information gaps regarding certain mechanisms
within specific jurisdictions or when we needed clarification, explanation or confirmation of a
trial-avoiding conviction mechanism in a specific jurisdiction or the year in which this mechanism
was formally adopted. The questions asked of legal experts included whether a given jurisdiction
has plea bargaining, penal orders or other ways to reach a criminal conviction without a trial, and
when these mechanisms were adopted. More targeted questions were asked to experts whenever
we needed information, clarification, explanation or confirmation of specific points, including
about specific legal mechanisms and their formal adoption year. Most experts were consulted by
e-mail, but a number of them were interviewed in person and one was interviewed over the phone
as described below.
A recent global survey by the NGO Fair Trials (Fair Trials 2017:22) based on responses
from local attorneys indicates that of the 90 jurisdictions for which information was collected, 66
jurisdictions had adopted “trial-waiver” procedures—the report does not explain how the surveyed
jurisdictions were selected. These procedures were defined as creating “a process not prohibited
by law under which criminal defendants agree to accept guilt and/or cooperate with the
investigative authority in exchange for some benefit from the state, most commonly in the form of
reduced charges and/or lower sentences” (Fair Trials 2017:2). Though there is overlap between
the trial-waivers surveyed by Fair Trials and the trial-avoiding conviction mechanisms covered in
53

this paper, the concepts are different (see supra note 33) and there are important differences
between them. For instance, the Fair Trials report does not include penal orders, presumably
because they do not require an admission of guilt (Fair Trials 2017:2), while this article does
include penal orders since they are still a way to reach a criminal conviction without a trial and
require implicit consent by the defendant to the application of the penal order to the case. Fair
Trials also includes cooperation agreements with a defendant in exchange for a reduction of
sentence or other benefit even when the defendant’s trial is not avoided (Fair Trials 2017:2), while
this article does not include these cooperation agreements since they are not a way to reach a
criminal conviction without a trial. In this sense, the Fair Trials report is not a study of trial-
avoiding conviction mechanisms and the administratization of criminal convictions like the one
offered in this article. Finally, the Fair Trials report refers to a group of jurisdictions that had trial-
waiver proceedings before the 1990s without stating the specific dates on which these jurisdictions
formally recognized these practices, while this article provides such dates.
The list of sources for the adoption of plea bargaining, penal order or equivalent
mechanisms by country that we used for Table 1 of this paper includes consulted experts, statutes,
judicial decisions and secondary literature. The sources by country are the following:
Angola: e-mail from Eliseu José Sacoji, Angolese jurist, from 5-22-2019; e-mails from José
Rodríguez Cambuta, Angolese prosecutor, from 6-19-2019 and 6-20-2019.
Argentina: National Criminal Procedure Code, Art. 431 bis; Langer 2004:54.
Australia: Maxwell v The Queen (1996) 184 CLR 501, 534; Brook et al. 2016:1152.
Belgium: Code of Criminal Procedure, Art. 216; Fernandez-Bertier & Giacometti 2016: 270.
Bolivia: Code of Criminal Procedure, Art. 373; Lorenzo 2009:86.
Bosnia and Herzegovina: Criminal Procedure Code, Art. 231 & 334; OSCE 2004:2; Alkon & Dion
2014:14; Alkon 2010:371.
Brazil: interview with Gustavo Badaró, professor at the University of São Paulo, on 4-16-2019;
interview with Andrey Borges de Mendoça, professor at University of São Paulo and Brazilian
prosecutor on 4-16-2019 and e-mail from him from 4-24-2019; interview with Rodrigo da Silva
Brandalise, professor at the Fundação Escola Superior do Ministério Público on 4-16-2019; e-
mails from Ricardo Jacobsen Gloeckner, professor at Pontificia Catholic University of Porto
Alegre from 10-15-2018 and 10-21-2018; Brazilian Law N. 9099/1995, Article 76; Supremo
Tribunal Federal, HC 79572, Relator(a): Min. Marco Aurélio, Segunda Turma, DJ 22-02-2002
PP-00034 EMENT VOL-02058-01 PP-00204, February 29, 2000; Supremo Tribunal Federal,
Súmula Vinculante n. 35, October 16, 2014, based on multiple precedents; Supremo Tribunal
Federal, RE 795.567, rel. min. Teori Zavascki, P, j. 28-5-2015, DJE 177, September 9, 2015.
Bulgaria: e-mail from Jenia Iontcheva Turner, professor at Southern Methodist University, from
5-16-2019; email from Ekaterina Trendafilova, President of the Kosovo Specialist Chambers
from 5-20-2019; Criminal Procedure Code, Art. 381; Marinova 2006:75.
54

Canada: e-mail from Kent Roach, professor at the University of Toronto, from 11-28-2019; R v
Burlingham, [1995] 2 SCR 206; Burke Scott 2018:65; O’Brien 2017:39.
Chile: Criminal Procedural Code, Art. 392, 395 & 406. Riego 2017:1086; Maldonado 2004:14.
China: e-mails from Ma Qin, PhD Candidate at Tsinghua University and S.J.D. Candidate at
UCLA, from 11-4-2018, 11-29-2018, 12-08-2019 and 3-25-2019; Criminal Procedure Law of the
People’s Republic of China, Art. 208 (2012 Amendment), & 214 et seq. (2018 Amendment);
Ramadhan 2014:86-89.
Colombia: e-mails from Astrid Liliana Sánchez Mejía, professor at Javeriana University, from 5-
2-2018 and 7-12-2019; Decreto 2700/1991, Art. 37; Code of Criminal Procedure of 2004, Art.
293, 350 et seq.
Costa Rica: Criminal Procedural Code, Art. 373; Houed Vega 2003:22.
Croatia: e-mail from Zlata Đurđević, professor at University of Zagreb, from 7-20-2019; Criminal
Procedure Act, Art. 360 et seq. & 540 et seq.; Bubalović 2013:299, note 58; Thaman 2012:161.
Czech Republic: e-mail from Filip Ščerba, Palacky University in Olomouc, Faculty of Law, from
1-24-2018; Code of Criminal Procedure, Art. 175a, 175b, 314e, 314f & 314g; Ščerba 2014:173-
174.
Ecuador: Code of Criminal Procedure, Art. 369 et seq.; Touma Endara 2017:10.
El Salvador: Code of Criminal Procedure, Art. 417-418. Órgano Judicial 2017.
England & Wales: Turner [1970] 2 QB 32; McConville 2002: 357-358.
Estonia: e-mail from Jaan Ginter, professor at the University of Tartu, from 1-28-2019; Code of
Criminal Procedure, Art. 239 et seq.; Sillaots 2004:116.
France: French CPC, Art. 495, 495-1, 495-3; LOI n° 2004-204 du 9 mars 2004 portant adaptation
de la justice aux évolutions de la criminalité, 495-7-495-16; Art. 524-528-2; Pouget 2013:60-62.
Georgia: Criminal Procedure Code, Art. 209 et seq.; Coalition for an Independent and Transparent
Judiciary. 2013:1; Transparency International Georgia. 2010:3.
Germany: e-mail from Kai Ambos, Göttingen University, from 4-22-2019, and interview on 4-16-
2019); e-mail Stefan Harrendorf, professor at Greifswald University, from 7-1-2019; e-mail from
Martina Jauss, assistant of Professor Thommen at University of Zurich; and Marc Thommen,
professor at the University of Zurich, from 3-5-2019; Criminal Procedure Code §Art. 257c &
§§407 et seq.; BGBl. I 2009, S. 2353, Gesetz zur Regelung der Verständigung im Strafverfahren
(Law Regulating Understandings in Criminal Procedure); Stuckenberg 2013:212-213; Thaman
2012:159.
55

Guatemala: Code of Criminal Procedure, Art. 464-465; Congreso de la República de Guatemala,
Decreto Número 51-92; Comisión Internacional contra la Impunidad en Guatemala 2017:24.
Honduras: Code of Criminal Procedure, Art. 403-404; Cuéllar Cruz 2003:106.
Hungary: e-mail from Károly Bárd, professor at Central European University, from 5-21-2019;
Act XIX of 1998 on Criminal Proceedings; Act no. XXXIII. of 1896, that came into effect on
January 1, 1900; Bárd 2007:230-232.
India: Code of Criminal Procedure, Art. 265A-265L; Legal Service India, Plea-Bargaining:
Present Status in India, available at: http://www.legalservicesindia.com/article/658/Plea-
Bargaining:-Present-Status-in-India.html; The Criminal Law (Amendment) Act 2 of 2006.
Indonesia: e-mails from Mark Cammack, professor at Southwestern Law School, from 10-5-2018
and 7-13-2019; Strang 2008:199; Ramadhan 2014:92; Tristanto 2018:411.
Israel: e-mails from Ely Aaronson, professor at Haifa University, and Oren Gazal-Ayal, professor
and law dean at Haifa University, from 5-16-2019 and 5-17-2019; Bahmoutzki (1972) 26(i) P.D.
543. These were earlier and less comprehensive decisions that mention plea bargains in the late
1960s and early 1970s. But the Bahmoutzki case is the first thorough court decision about the
legitimacy of plea bargaining and the rules according to which the parties and the court should act
when making such an agreement.
Italy: D.P.R. 22 settembre 1988, n. 447; Code of Criminal Procedure, Art. 438 et seq., 444 et seq.
& 459 et seq.; Langer 2004:46-53; Thaman 2012:160.
Japan: interview with Takashi Takano, private attorney, and Megumi Wada, private attorney, on
7-21-2018; and interviews on 7-23-2028 with six Japanese public officials whose names and
positions I have been asked to keep anonymous (also e-mail by one of them from 7-23-2018);
Code of Criminal Procedure, Art. 350-16 and Art. 461 et seq.
Latvia: e-mails from Yehonatan Givati, Hebrew University from 5-20-2019; Kristine Strada-
Rozenberga, professor at University of Latvia, from 6-9-2019; Stephen C. Thaman, professor
emeritus at Saint Louis University, from 5-20-2019; and Anita Ušacka, judge at International
Criminal Court, from 6-9-2019; Criminal Procedure Law, Art. 433 et seq., 539 et seq., 544 et seq.
& 420 et seq.
Macedonia: e-mail from Gordana Lažetić, professor at Faculty of Law "Iustinianus Primus",
University Ss. "Cyril and Methodius", Skopje, from 5-22-2019; Criminal Procedure Code, Art.
483 et seq. & 497 et seq.; Kalajdžiev & Lažetić Bužarovska 2013:120; Lažetić Bužarovska G,
Misoski B. 2013:224.
Malaysia: e-mails from Mark Cammack, professor at Southwestern Law School, from 7-15-2019;
Criminal Procedure Code, Section 172C et seq.; Nurami binti Abdul Manab, Amrullah bin Drs
Nasrul & Syawaeda binti Jaiman 2018:262.
56

Moldova: Criminal Procedure Code, Art. 504 et seq.; Alkon 2010:409.
Montenegro: e-mail from Radomir Prelević, private attorney, from 6-10-2019; Criminal Procedure
Code, Art. 300 et seq. & 461 et seq.; Prelević 2013.
Netherlands: e-mail from Michiel Pestman, private attorney, from 6-4-2019; Code of Criminal
Procedure, Art. 257a et seq.; Jacobs & van Kampen 2014:73-74.
New Zealand: Criminal Procedure Act 2011, pt 1 s 60 (N.Z); Brook et al. 2016:1162; Conder
2017:100.
Nicaragua: e-mail from Eilyn Cruz Rojas, private attorney, from 7-15-2019; Criminal Procedure
Code, Art. 61; Arduino 2007:147,177; Gómez Colomer 2001:245.
Nigeria: e-mail from Ibrahim Danjuma, HOD Public Law Department, Faculty of Law, Bauchi
State University Gadau, Nigeria, from 7-9-2019; e-mails from Dr. Chinwe A. Mordi from 6-20-
2019; Economic and Financial Crimes Commission Act, Section 13(2); Administration of
Criminal Justice Act, Section 270 (2015); Mordi 2018:153; Danjuma & Ching Chuan 2015:492.
Panama: Criminal Procedural Code, Art. 220; Barrías 2018:255.
Peru: Ley N° 26320 (Law N. 26320); Decreto Legislativo N° 957, 29 de julio de 2004 (Legislative
Decree N. 957, published July 29, 2004); Criminal Procedural Code, Art. 372.2, Art. 468 et seq.,
and 484.3; Fernández Muñoz 2010; Taboada 2009.
Philippines: Dante Gatmaytan, Professor, University of the Philippines College of Law (e-mail
from 7-7-2019); JJ Disini, professor at U.P. College of Law, Malcolm Hall, U.P. Campus, e-mail
from 7-15-2019; 1940 Rules of Court, Rule 114, Section 4; Supreme Court of Philippines (en
banc), Salvador Estipona, Jr. y Asuela vs. Hon. Frank E. Lobrigo and People of the Philippines,
G.R. No. 226679, August 15, 2017.
Poland: Wojciech Jasiński, Department of Criminal Procedure, Faculty of Law, Administration

and Economics, University of Wrocław (interview on 5-10-2019 and email from 5-19-2019); e-
mail from Andrzej Światłowski, Jagiellonian University, from 7-18-2018; Code of Criminal
Procedure, Art. 335, 387 & 500 et seq.
Portugal: interview with Paulo de Sousa Mendes, professor at University of Lisbon School of
Law, on 4-15-2019; Criminal Procedure Code, Art. 392 et seq.
Romania: Criminal Procedure Code, Art. 349.2, 374.4, and 478 et seq.; Roibu 2016; Uzlău 2013.
Russian Federation: e-mail from Tamara Morshchakova, retired judge of Russian Constitutional
Court, from 3-1-2019; e-mail from Stephen C. Thaman, professor emeritus at Saint Louis
University, from 1-21-2019;
Code of Criminal Procedure, Art. 226.1-9, 314, 317.7; Burnham & Kahn 2008:87-91; Solomon
2012.
57

Scotland: e-mail from James Chalmers, professor at the University of Glasgow, and Fiona
Leverick, professor at the University of Glasgow, from 2-13-2019; Criminal Procedure Act 1995,
Section 196; Leverick 2006.
Serbia: e-mail from Milena Tripkovic, Birmingham Law School, University of Birmingham, from
7-9-2018; Criminal Procedure Code, Art. 313 et seq. & 512 et seq. Bejatović 2013:14, 25-26.
Slovenia: e-mail from Mojca M. Plesničar, professor at Ljubljana University, from 6-22-2018;
Criminal Procedure Act 2012, Art. 450a- č, 445a-e; Fišer 2013:94, 101.
South Africa: e-mails from Wium de Villiers, professor at University of Pretoria, from 7-18-2019;
Dirk van Zyl Smit, professor at the University of Nottingham, from 7-12-2019; Gerhard Kemp,
professor at Stellenbosch University from 7-15-2019;; South African Criminal Procedure Act,
Sections 105A, 57, and 57A; North Western Dense Concrete CC v Director of Public Prosecutions
(Western Cape), 1999 (2) SACR 669; Rodgers 2010:240.-243; Steyn 2007:207.
South Korea: e-mails from Dae-Hyun Choe, Department of Police Science, Glocal Campus,
Konkuk University, from 7-7-2019; Yong-Chul Park, Professor at Sogang University Law School
from 7-7-2019; South Korean Criminal Procedure Code, Art. 448-458.
Spain: interview with Mar Jimeno-Bulnes, professor at Universidad de Burgos, on 6-8-2018; Ley
de Enjuiciamiento Penal Española (Spanish Criminal Procedure Law), Art. 655, 688-700, 694-
695, 779, 784, 787, 800.2, 801, 803 bis a-j; Ley Orgánica 7/1988, de 28 de diciembre; Ley 38/2002,
de 24 de octubre, y por la Ley Orgánica 8/2002, de 24 de octubre; Gómez-Colomer 24; Thaman
2010:345.
Sweden: Swedish Code of Judicial Procedure, Chapter 48; Zila 1999-2002:400-401.
Switzerland: e-mails Marc Thommen, professor at the University of Zurich; and Martina Jauss,
research assistant of Professor Thommen at University of Zurich, from 3-1-2019, 3-5-2019, 3-6-
2019; Swiss Criminal Procedure Code 2007, Art. 352 et seq., 358 et seq.; Bürgisser, 2012/2013:1;
Thommen 2013; Thommen 2018:400.
Taiwan: e-mails from Margaret Lewis, professor at Seton Hall University School of Law, from 7-
28-2018, 7-29-2018 and 8-7-2018; and Kai-ping Su, professor at National Taiwan University from
8-5-2018; Criminal Procedure Code, Art. 455-2 et seq., 271-3, 273-1, 273-2, 449 et seq.; Lewis
2009:672; Su 2017:209; Wang 2011:11.
Ukraine: e-mail from Peter Solomon, professor at University of Toronto, from 7-8-2019; email
from Roman Kuybida, assistant professor of Taras Shevchenko National University of Kyiv, from
7-10-2019; e-mail from Olexandr Banchuk, researcher of the Institute of State and Law of National
Academy of Sciences of Ukraine, from 7-10-2019; Code of Criminal Procedure, art. 468 et seq.
and 481 et seq.; Solomon 2015:172.
58

United Arab Emirates: e-mail from Taiba Alsafar, private attorney, from 7-7-2019; amendment of
the Federal Criminal Procedures Law by Federal Decree by Law No. 17 of 2018.
United States: Brady v. United States, 397 U.S. 742 (1970); Federal Rules of Criminal Procedures
Amendments Act of 1975 (PL 94-64) (adding plea bargaining to Rule 11 of the Federal Rules of
Criminal Procedure); Alschuler 1979:6, 40.
Uruguay: Ley 19.436, Art. 3, published on November 1, 2016; Ley 19.653, 18 de Agosto de 2018,
CM 694; Code of Criminal Procedure, Art. 272-273.
Venezuela: Ley de Beneficios en el Proceso Penal (Law of Benefits in the Criminal Process),
Gaceta Oficial N° 4.620 de fecha 25 de agosto de 1993, articles 9, 10, and 11; Organic Criminal
Procedural Code, Art. 376, published in Gaceta Oficial Nº 5.208 Extraordinario de 23 de enero
de 1998; Puppio 2008:31; Vásquez González 2008:215
Figure 1. Rate of Administratization of Criminal Convictions in 26 Jurisdictions.
The jurisdictions included in Figure 1 are the ones, of the 60 jurisdictions covered in Table
1, for which we could find reliable data on the rate of use of trial-avoiding conviction mechanisms.
Since there are not international standardized data on what percentage of criminal convictions are
obtained without a trial, this paper relies on data reported by the judiciary, the offices of the
prosecution, the ministries of justice, the offices of statistics and academic research from individual
jurisdictions. We also consulted 21 legal experts on 12 of the jurisdictions to obtain and interpret
the reported data. These experts were consulted when we could not find data on individual
jurisdictions or we needed confirmation or help with the translation or interpretation of data on
individual jurisdictions.
It is necessary to make a few notes of caution on issues around measurement, selection bias
and comparability. First, the data on at least seven of these jurisdictions do not refer to the rates of
administration of the countries as a whole but rather to a jurisdiction or subset of jurisdictions
within them. The data on Argentina refer to cases before the federal and penal economic courts
but do not include cases before city of Buenos Aires and provincial courts. The data on Australia,
Switzerland and the United States refer to their respective federal systems. The data on Switzerland
refer to felonies and misdemeanors but do not include contraventions. The data on England and
Wales refer only to cases before Crown Courts. The data on France refer only to cases before the
Correctional Tribunal. The data on Germany refer to criminal proceedings before the Amtsgerichte
and the Landgerichte. The data on the Netherlands refer only to District Court cases. In the case
of New Zealand, the data cover not only the District Court, but also Youth Court and the High
Court.
Second, in a number of jurisdictions there are no data available on the total number of
convictions or the number of convictions entered following a guilty plea, penal order or equivalent,
and we used proxies for these variables instead. Many jurisdictions report the number of guilty
pleas, penal orders or equivalent mechanisms, but not the number of convictions reached through
them. Since anecdotal and empirical evidence indicates that the use of these mechanisms typically
59

ends in a conviction against a defendant, for a number of jurisdictions the number of guilty pleas,
penal orders and equivalent mechanisms was used as a proxy for the number of convictions
reached through them. For Argentina, Estonia, Italy, Latvia and Scotland the rate of
administratization was calculated as the percentage of guilty pleas, penal orders or equivalent
mechanisms out of the total number of verdicts (including convictions and acquittals) because data
on the total number of convictions do not seem to exist or, in the case of Scotland, data on the total
number of guilty pleas and total number of convictions from a single source do not seem to exist.
For the Czech Republic, we used proposals to reach an agreement on guilt and punishment as a
proxy for plea bargains. Also, for the Czech Republic, Germany and Russia, data reported at the
case/proceeding level and at the individual defendant level had to be combined to calculate the
rate of administratization of criminal convictions because there are no other available data.
For Germany, we used the available data on applications for penal orders as a proxy for
penal orders because there are no official statistics on the total number of penal orders issued. It is
also worth noting that there is a mismatch between the available empirical studies on Germany
reported in Section II and the official statistics on the Verständigungen (the German equivalent to
plea bargaining); the official statistics report lower numbers than the empirical studies. It is also
important to note that the Verständigungen may have some trial activity if judges follow their
statutorily-established duty to investigate the truth. In this sense, only Verständigungen without
any subsequent significant trial-related activity (as documented, for instance, by Altenhain et al.
2013:98-103) are true examples of administratization. But since most of the German
administratization rate is due to penal orders, and Verständigungen only represent 0.6% of the
outcomes obtained through trial-avoiding mechanisms, the official underreporting or
overreporting of Verständigungen would not substantially affect Germany’s rate.
For all of these reasons, these data should be taken with caution. In some jurisdictions, such
as those in which proxies for the relevant data had to be used, the rate of administratization of
criminal convictions reported in this paper should be considered an estimate, rather than a
definitive number. Official agencies and future academic studies should try to collect additional
data that address measurement, selection bias and comparability issues like the ones just explained.
For the purposes of this piece, these data illustrate how the rate of administratization of criminal
convictions could enable comparing jurisdictions in a new and meaningful way despite the formal
differences between trial-avoiding conviction mechanisms across and within jurisdictions. The
fact that there are not standardized data across the world on the rate of administratization of
criminal convictions (i.e., the rate of criminal convictions obtained without a trial) may be partially
a result of the fact that this very concept has not been articulated until now. In that sense, it is worth
noting that even important projects to standardize data about criminal justice at the European level,
such as European Sourcebook on Crime and Criminal Justice Statistics and the Council of Europe
Annual Penal Statistics (SPACE), report neither what percentage of criminal convictions are
reached without a trial, nor the data to calculate such a rate. (The European Sourcebook on
Criminal and Criminal Justice Statistics 2014 provides data on penal orders but not on other
mechanisms to reach a criminal conviction without a trial (see Aeibi et al. 2014/2017.)
The list of sources on the rate of administratization of criminal conviction by country used
in Figure 1 of this paper are:
60

Argentina: Poder Judicial de la Nación, Oficina de Estadísticas (National Judiciary, Office of
Statistics), available at its official website at: https://www.pjn.gov.ar/07_estadisticas/;
https://www.pjn.gov.ar/07_estadisticas/Trabajos_Especiales/Justicia_Penal_Oral_2001_2012/Tri
bunales%20Orales%20JUICIO%20ABREVIADO%202001-2012.pdf.
Australia: Australia’s Federal Prosecution Service, Annual Report 2017-2018 113, available at:
https://www.cdpp.gov.au/publications; and https://www.cdpp.gov.au/statistics/prosecution-
statistics.
Bulgaria: National Statistical Institute, Crimes by results of proceedings and by statistical zones,
statistical regions and districts, available at http://www.nsi.bg/en/content/6242/crimes-results-
proceedings-and-statistical-zones-statistical-regions-and-districts; CEPEJ Data per country,
Bulgaria 10, available at: https://rm.coe.int/cepej-data-per-country-state-or-entity-bulgaria-
2014/168078d061.
Chile: Information provided by the Departamento Desarrollo Institucional, Corporación

Administrativa del Poder Judicial (Department of Institutional Development, Administrative
Corporation of the Judiciary) to Ricardo Lillo Lobos on 1-29-2019.
Colombia: Data from Fiscalía General de la Nación (National Office of the Prosecutor General),
obtained and shared by Astrid Liliana Sánchez Mejía, professor at Javeriana University, on 1-28-
2018. We are grateful to Astrid Liliana Sánchez Mejía for her help in the interpretation of these
data (e-mails 1-28-2018, 7-17-2019, 7-19-2019, and 7-20-2019, and phone interview on 7-19-
2019).
Costa Rica: Ministerio Público, Memoria Anual 2016 (Public Ministry. Annual Report) 87,
available at: https://ministeriopublico.poder-judicial.go.cr/index.php/es/transparencia-informes-
institucionales
Croatia: Izvješće Državnog Odvjetništva Republike Hrvatske Za 2016. Godinu (2016 Report,
State’s Attorney Office of the Republic of Croatia) 34, 35, 38, 44, available at:
http://www.dorh.hr/Default.aspx?sec=645. We are grateful to Mirjan Damaška, professor emeritus
at Yale Law School, and Zlata Đurđević, professor at University of Zagreb, for their help in the
translation and interpretation of these data (e-mail from 7-20-2019).
Czech Republic: Ministerstvo Spravedlnosti Čr, Statistický Přehled Soudních Agend První Část,
Rok 2016 (Ministry of Justice, Statistical Overview Judicial Agencies, First Part, 2016) 32, 50,
124; Ministerstvo Spravedlnosti Čr, Statistická Ročenka Kriminality Rok 2016 (Ministry of
Justice, Statistical Yearbook on Criminality, 2016) 21; available at:
http://cslav.justice.cz/InfoData/statisticke-rocenky.html. We are grateful to Filip Ščerba, professor
at Palacky University in Olomouc, Faculty of Law, for having helped us to find these sources and
interpret these data (e-mails from 1-24-2018 and 1-26-2018).
England & Wales: Ministry of Justice, available at:

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-october-to-
december-2016 (overview tables file, table C5);
61

https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-
2016 (Prosecutions and convictions tool file with crown courts and conviction filters).
Estonia: ESIMESE JA TEISE ASTME KOHTUTE MENETLUSSTATISTIKA 2017.a

KOONDANDMED, 2017 (Procedural Statistics of the First and Secondary Courts 2017) 5,
available at
https://www.kohus.ee/sites/www.kohus.ee/files/elfinder/dokumendid/i_ja_ii_astme_kohtute_201
7.a_statistilised_koondandmed.pdf. We are grateful to Jaan Ginter, professor at the University of
Tartu, for having helped us to interpret these data (e-mails from 1-28-2019 and 1-29-2019).
France: Ministère de la Justice, Les chiffres-clés de la Justice, 2017 (Minister of Justice, The Key
Statistics on Justice 2017) 14,15,17, available at
http://www.justice.gouv.fr/art_pix/stat_CC%202016.pdf.
Georgia: Supreme Court of Georgia, The Judiciary in Georgia – Statistical Data for the Year
2016 69-70, available at: http://www.supremecourt.ge/eng/statistics/.
Germany: Statistisches Bundesamt, Rechtspflege. Strafgerichte 2016 (Federal Office of Statistics,

Administration of Justice. Criminal 2016), Tables 1.2, 2.1, 2.2, 2.3, 4.1, 4.2 and 4.3, available at:
https://www.destatis.de/GPStatistik/receive/DESerie_serie_00000103. We are grateful to Kai
Ambos, Göttingen University (email 4-22-2019); Kirstin Drenkhahn, professor at Free University
of Berlin (email from 6-10-2019); and Stefan Harrendorf, professor at Greifswald University
(email from 7-1-2019) (whose calculations we use) for their help in the interpretation of these data.
Israel: Gazal-Ayal & Weinshall 2015. We are grateful to Oren Gazal-Ayal, professor and law
dean at Haifa University, for providing these data to us (e-mail from 1-20-2019).
Italy: Corte Suprema di Cassazione, Giorgio Santacroce, Relazione sull’amministrazione della

giustizia nell’anno 2013 (Supreme Court of Cassation, Giorgio Santacroce, Report on the
administration of justice in year 2013) 103, available at
http://www.cortedicassazione.it/cassazione-
resources/resources/cms/documents/Relazione_anno_giudiziario_2013.pdf.
Latvia: Latvijas Republikas Prokuratūras darba rezultāti 2016. gadā (Prosecutor Office of Latvia,
2016 Report) 2, available at: http://www.prokuratura.gov.lv/en/noderigi/statistika; Tiesu
administrācija, Statistikas pārskats par krimināllietu izskatīšanu pirmajā instancē 2016. gadā
(Court Administration, Statistics of Criminal Proceedings of First Instance 2016), available at:
https://www.ta.gov.lv/LV/publikacijas_un_statistika_1509/statistikas_dati_58/kriminallietas_245
; Centrālās statistikas pārvaldes datubāzes (databases of the Central Statistical Bureau), available
at https://data1.csb.gov.lv/pxweb/lv/sociala/sociala__tiesas/TKG130.px. We are grateful to
Kristine Strada-Rozenberga, professor at University of Latvia (email from 6-12-2019); Stephen C.
Thaman, professor emeritus at Saint Louis University (email from 6-7-2019); Anita Ušacka, judge
at the International Criminal Court (e-mail from 6-11-2019); and Salvedis Vārpiņš, private
attorney (e-mails from 7-18-2019) for their help to obtain, confirm, translate and interpret these
data.
62

Netherlands: Statistics Netherlands, Criminal law; key figures, available at:
http://statline.cbs.nl/Statweb/selection/?DM=SLEN&PA=37340ENG&LA=EN&VW=T.
New Zealand: Ministry of Justice. Access to information request. Information received on 11-19-
2018.
Panama: Ministerio Público de Panamá, Informe Nacional de Sentencias Enero a Diciembre 2017
(Public Ministry of Panama, National Report of Verdicts January to December 2017), available at
http://ministeriopublico.gob.pa/wp-content/multimedia/2018/02/Informe-Nacional-de-
Sentencias-Enero-a-Diciembre-2017.pdf;; Ministerio Público de Panamá, Informe Nacional de
Métodos Alternos Enero a Diciembre 2017 (Public Ministry of Panama, National Report of
Alternative Methods and Resolution of Conflict January to December 2017)
http://ministeriopublico.gob.pa/wp-content/multimedia/2018/02/Informe-Estad%C3%ADstico-
M%C3%A9todos-Alterno-Enero-a-Diciembre-2017.pdf.
Peru: Ministerio de Justicia y Derechos Humanos. 2016. Reforma Procesal Penal Peruana. III
Informe Estadístico Nacional 2006-2015 (Ministry of Justice and Human Rights. 2016. Peruvian
Criminal Procedure Reform. III Statistical National Report 2006-2015) 61-63, 85-87, 90,
available at: https://www.minjus.gob.pe/wp-content/uploads/2017/07/III-INFORME-
ESTADI%CC%81STICO.pdf. This report include data on “terminación anticipada del proceso”,
but not on “conclusion anticipada del juicio”. However, according to a different statistical report
by the Public Ministry of Peru, “conclusion anticipada del juicio” is only very sparingly used. See
Ministerio Público, Anuario Estadístico 2014 Tabla 2.17 (reporting only 75 “conclusión
anticipada” and 4034 “sentencias” (trial verdicts)), available at
https://portal.mpfn.gob.pe/estadistica/ANUARIOESTADISTICO2014FINAL.pdf.
Russian Federation: Judicial Department at the Supreme Court of the Russian Federation, available
at: http://cdep.ru/index.php?id=79 and
http://cdep.ru/userimages/sudebnaya_statistika/2018/Osnovnye_oper_pokazateli_2017.xls. We
are grateful to Tamara Morshchakova, retired judge from the Constitutional Court of Russia and
professor at National Research University, for her help in the interpretation of these data.
Scotland: Crown Office and Procurator Fiscal Service, Scotland’s Prosecution Service, Statistics
on Case Processing Last: 5 Years, available at:
http://www.copfs.gov.uk/images/Documents/Statistics/Statistics%20-
%20COPFS%20Performance%20201617/Statistics%20on%20Case%20Processing%20Last%20
5%20Years%202012-17.pdf ; http://www.copfs.gov.uk/publications/statistics. We are grateful to
James Chalmers, professor at the University of Glasgow, and Fiona Leverick, professor at the
University of Glasgow, from having helped us to assess the data on Scotland (email from 2-13-
2019).
Slovenia: Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu Državnih
Tožilstev Za Leto 2017 (Public Prosecutor’s General Office, Annual Report, 2017) 38, 53, 67,
available at https://www.dt-rs.si/letna-porocila. We are grateful to Mojca M. Plesničar, professor
at Ljubljana University, for having translated and helped us interpret these data (email from 6-22-
2018).
63

Switzerland: Federal Statistical Office, Adults: Convictions and persons convicted for a
misdemeanour or felony, Switzerland and cantons, available at
https://www.bfs.admin.ch/bfs/en/home/statistics/crime-criminal-justice/criminal-
justice/convictions-minors-adults.assetdetail.2769263.html; Federal Statistical Office, Adults:
Convictiosn for a misdemeanour or felony, depending on the type of procedure, available at
https://www.bfs.admin.ch/bfs/en/home/statistics/crime-criminal-justice/criminal-
justice/convictions-minors-adults.assetdetail.2769154.html; Schmid CA. 2016, May 23.
Abgekürzte Verfahren: Starke Zunahme, Plädoyer 3, available at:
https://www.plaedoyer.ch/artikel/d/abgekuerzte-verfahren-starke-zunahme/. We are grateful to
Marc Thommen, professor at the University of Zürich, and Luca Ranzoni, research assistant of
Professor Thommen at the University of Zürich, for their help in obtaining some of these data and
in interpreting these data (e-mails from 1-29, 2018; 1-30-2018).
Taiwan: 2017 Judicial Statistics Yearbook Tables 67, 71, 73, and 83, available at:
https://www.judicial.gov.tw/juds/; Judicial Statistics Office, data provided to Professor Kai-ping
Su that he sent to us by e-mail from 9-14-2018. We are grateful to Margaret Lewis, professor at
Seton Hall University School of Law (e-mails from 7-28-2018, 7-29-2018 and 8-7-2018); and Kai-
ping Su, professor at National Taiwan University (emails from 8-10-2018, 8-15-2018, 8-24-2018,
9-14-2018, 10-19-2018 and 10-25-2018) for pointing us towards and providing us with the data
we use and for their translation and interpretation of them.
United States: U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics.
2017. Federal Justice Statistics 2013-2014, Table 15, March 2017, NCJ 249149, available at
https://www.bjs.gov/content/pub/pdf/fjs1314.pdf.
Table 2. Rate of Administratization of Criminal Convictions over Time since Adoption of Trial-
Avoiding Conviction Mechanisms in 12 Jurisdictions
The remarks made regarding the data used for Figure 1 also apply to the data used for Table
2 of this paper. The list of sources on the rate of administratization of criminal conviction by
country over time used in Table 2 and the experts consulted are:
Argentina: Poder Judicial de la Nación, Oficina de Estadísticas (National Judiciary, Office of

Statistics), available at its official website at: https://www.pjn.gov.ar/07_estadisticas/;
https://www.pjn.gov.ar/07_estadisticas/Trabajos_Especiales/Justicia_Penal_Oral_2001_2012/Tri
bunales%20Orales%20JUICIO%20ABREVIADO%202001-2012.pdf.
Chile: Information provided by the Departamento Desarrollo Institucional, Corporación

Administrativa del Poder Judicial (Department of Institutional Development, Administrative
Corporation of the Judiciary) to Ricardo Lillo Lobos on 1-29-2019.
Colombia: Data from Fiscalía General de la Nación (National Office of the Prosecutor General),
obtained and shared by Astrid Liliana Sánchez Mejía, professor at Javeriana University, on 1-28-
2018. We are grateful to Astrid Liliana Sánchez Mejía for her help in the interpretation of these
data (e-mails 1-28-2018, 7-17-2019, 7-19-2019, and 7-20-2019, and interview on 7-19-2019).
64

Costa Rica: Ministerio Público, Memoria Anual 2016 (Public Ministry. Annual Report) 87;
Memoria Anual 2015 71; Memoria Anual 2014 40; Ministerio Público, Memoria Annual 2013 69;
available at: https://ministeriopublico.poder-judicial.go.cr/index.php/es/transparencia-informes-
institucionales.
Czech Republic: Ministerstvo Spravedlnosti Čr, Statistický Přehled Soudních Agend První Část,
Rok 2016 (Ministry of Justice, Statistical Overview Judicial Agencies, 2016) 32, 50, 124;
Statistický Přehled Soudních Agend První Část, Rok 2015 32, 50, 124; Statistický Přehled
Soudních Agend První Část, Rok 2014. 40, 58, 132; Statistický Přehled Soudních Agend První
Část, Rok 2013 40, 58, 132; Statistický Přehled Soudních Agend První Část, Rok 2012 40, 58, 132;
Ministerstvo Spravedlnosti Čr, Statistická Ročenka Kriminality Rok 2016 (Ministry of Justice,
Statistical Yearbook on Criminality, 2016) 21; Ministerstvo Spravedlnosti Čr, Statistická Ročenka
Kriminality Rok 2015 20; Ministerstvo Spravedlnosti Čr, Statistická Ročenka Kriminality Rok
2014 10; Ministerstvo Spravedlnosti Čr, Statistická Ročenka Kriminality Rok 2013 10;
Ministerstvo Spravedlnosti Čr, Statistická Ročenka Kriminality Rok 2012 10; Ministerstvo
Spravedlnosti Čr, Statistická Ročenka Kriminality Rok 2011 10. Available at:
http://cslav.justice.cz/InfoData/statisticke-rocenky.html. We are grateful to Filip Ščerba, professor
at Palacky University in Olomouc, Faculty of Law, for having helped us to find these sources and
interpret these data (e-mails from 1-24-2018 and 1-26-2018).
France: Ministère de la Justice, Les chiffres-clés de la Justice, 2017 (Minister of Justice, The Key
Statistics on Justice 2017) 14,15,17; Les chiffres-clés de la Justice, 2016 14,15,17; Les chiffres-
clés de la Justice, 2015 14,15,17; Les chiffres-clés de la Justice, 2014 14,15,17; Les chiffres-clés
de la Justice, 2013 14,15,17; Les chiffres-clés de la Justice, 2012 14,15,17; Les chiffres-clés de
la Justice, 2011 14,15,17; Les chiffres-clés de la Justice, 2010 14,15,17; Les chiffres-clés de la
Justice, 200914,15,17; Les chiffres-clés de la Justice, 2008 14,15,17; Les chiffres-clés de la
Justice, 2007 14,15,17; Les chiffres-clés de la Justice, 2006 14,15,17; Les chiffres-clés de la
Justice, 2005 16, 17, 18; available at: http://www.justice.gouv.fr/statistiques-10054/chiffres-cles-
de-la-justice-10303/.
Georgia: Supreme Court of Georgia, The Judiciary in Georgia – Statistical Data for the Year 2016
69-70; The Judiciary in Georgia – Statistical Data for the Year 2015 77, 78; The Judiciary in
Georgia – Statistical Data for the Year 2014 77, 78; The Judiciary in Georgia – Statistical Data
for the Year 2013. Part III. Criminal Cases 5, 6; The Judiciary in Georgia – Statistical Data for
the Year 2012. Part III. Criminal Cases 5, 6; The Judiciary in Georgia – Statistical Data for the
Year 2011. Part III. Criminal Cases 5, 6; The Judiciary in Georgia – Statistical Data for the Year
2010. Part III. Criminal Cases 3, 4; The Judiciary in Georgia – Statistical Data for the Year 2009.
Part III. Criminal Cases 1; available at: http://www.supremecourt.ge/eng/statistics/.
Latvia: Latvijas Republikas Prokuratūras darba rezultāti 2016. gadā (Prosecutor Office of Latvia,
2016 Report) 2, available at: http://www.prokuratura.gov.lv/en/noderigi/statistika; Tiesu
administrācija, Statistikas pārskats par krimināllietu izskatīšanu pirmajā instancē 2016. gadā
(Court Administration, Statistics of Criminal Proceedings of First Instance 2016); Tiesu
administrācija, Statistikas pārskats par krimināllietu izskatīšanu pirmajā instance 2015. Gadā;
Tiesu administrācija, Statistikas pārskats par krimināllietu izskatīšanu pirmajā instance 2014.
65

Gadā; Tiesu administrācija, Statistikas pārskats par krimināllietu izskatīšanu pirmajā instance
2013. gadā; available at
https://www.ta.gov.lv/LV/publikacijas_un_statistika_1509/statistikas_dati_58/kriminallietas_245
; Centrālās statistikas pārvaldes datubāzes (databases of the Central Statistical Bureau), available
at https://data1.csb.gov.lv/pxweb/lv/sociala/sociala__tiesas/TKG130.px. We are grateful to
Kristine Strada-Rozenberga, professor at University of Latvia (email from 6-12-2019); Stephen C.
Thaman, professor emeritus at Saint Louis University (email from 6-7-2019); Anita Ušacka, judge
at the International Criminal Court (e-mail from 6-11-2019); and Salvedis Vārpiņš, private
attorney (e-mails from 7-18-2019); for their help to obtain, confirm, translate and interpret these
data.
Netherlands: Statistics Netherlands, Criminal law; key figures, available at:

http://statline.cbs.nl/Statweb/selection/?DM=SLEN&PA=37340ENG&LA=EN&VW=T.
Russian Federation: Judicial Department at the Supreme Court of the Russian Federation.
Available at: http://cdep.ru/index.php?id=79. We are grateful to Tamara Morshchakova, retired
judge from the Constitutional Court of Russia and professor at National Research University, for
her help in the interpretation of these data.
Slovenia: Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu Državnih
Tožilstev Za Leto 2017
(Public Prosecutor’s General Office, Annual Report 2017) 38, 53, 67; Vrhovno Državno Tožilstvo
Republike Slovenije, Skupno Poročilo O Delu Državnih Tožilstev Za Leto 2016 38, 49, 62;
Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu Državnih Tožilstev Za
Leto 2015 39, 51, 63; Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu
Državnih Tožilstev Za Leto 2014 29, 35, 46; Vrhovno Državno Tožilstvo Republike Slovenije,
Skupno Poročilo O Delu Državnih Tožilstev Za Leto 2013 27, 31, 41; Vrhovno Državno Tožilstvo
Republike Slovenije, Skupno Poročilo O Delu Državnih Tožilstev Za Leto 2012 27, 30, 40;
Leto 2011 25, 36; Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu
Državnih Tožilstev Za Leto 2010 26, 38; Vrhovno Državno Tožilstvo Republike Slovenije, Skupno
Poročilo O Delu Državnih Tožilstev Za Leto 2009 24, 36; Vrhovno Državno Tožilstvo Republike
Slovenije, Skupno Poročilo O Delu Državnih Tožilstev Za Leto 2008 24, 35; Vrhovno Državno
Tožilstvo Republike Slovenije, Skupno Poročilo O Delu Državnih Tožilstev Za Leto 2007 23, 35;
Leto 2006 22, 34; Vrhovno Državno Tožilstvo Republike Slovenije, Skupno Poročilo O Delu
Državnih Tožilstev Za Leto 2005 21, 34; available at: https://www.dt-rs.si/letna-porocila. available
at https://www.dt-rs.si/letna-porocila. We are grateful to Mojca M. Plesničar, professor at
Ljubljana University, for having translated and helped us interpret these data.
Taiwan: 2017 Judicial Statistics Yearbook Tables 67, 71, 73, and 83, available at:
https://www.judicial.gov.tw/juds/; Judicial Statistics Office, data provided to Professor Kai-ping
Su that he sent to us by e-mail from 9-14-2018. We are grateful to Margaret Lewis, professor at
Seton Hall University School of Law (e-mails from 7-28-2018, 7-29-2018 and 8-7-2018); and Kai-
ping Su, professor at National Taiwan University (emails from 8-10-2018, 8-15-2018, 8-24-2018,
9-14-2018, 10-19-2018 and 10-25-2018) for pointing us towards and providing us with the data
we use and for their translation and interpretation of them.
66

2022 - 01 - 31 - Máximo Larger - Plea Bargaining, Trial-Avoiding Con-Viction Echanisms, and The Global Administratiza-Tion of Criminal Convictions

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2022 - 01 - 31 - Máximo Larger - Plea Bargaining, Trial-Avoiding Con-Viction Echanisms, and The Global Administratiza-Tion of Criminal Convictions

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Plea bargaining, trial-avoiding

Plea Bargaining, Trial-Avoiding Conviction Mechanisms and the Global

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I. The Diffusion of Plea Bargaining and Related Trial-Avoiding Conviction Mechanisms

Country Plea Bargaining (or equivalent) Penal order (or equivalent)

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Table 1 includes data about plea bargaining—i.e., understandings, agreements or

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II. Empirical Studies of Plea Bargaining and Other Trial-Avoiding Mechanisms in

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There have been empirical studies on trial-avoiding mechanisms in some non-U.S.

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In Germany, empirical studies relying on surveys or interviews mostly of judges,

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III. The Comparative Study of Plea Bargaining, Trial-Avoiding Conviction Mechanisms

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The concept of administratization of criminal convictions does not assume an idealized

The concept of administratization of criminal convictions builds upon the literature on

The concept of administratization of criminal convictions also enable us to clearly

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Third, the procedimiento abreviado (abbreviated proceedings) applies to cases in which

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Studying the differences among trial-avoiding conviction mechanisms in different

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The other trial-avoiding conviction mechanism is the compuration sur reconnasaince

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Some of these mechanisms—such as a portion of American and English plea agreements

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Rather, the common thread among these mechanisms is administratization. Convictions

The phenomenon of administratization of criminal convictions raises important public

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Reframing these questions as questions on administratization of criminal convictions is not

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IV. The Rate of Administratization of Criminal Convictions

Section III defined the phenomenon of administratization of criminal convictions and

RACC = Number of Convictions Obtained through Trial-Avoiding Conviction Mechanisms

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Figure 1. Rate of Administratization of Criminal Convictions in 26 Jurisdictions

Penal Order Plea Bargaining

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Does At Least One Trial-Avoiding Conviction Mechanism Apply to All Crimes?

Sources: Sources indicated for Figure 1 and Criminal Procedure Codes.

Another possible hypothesis to explain variation in the use of trial-avoiding conviction

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Administratization Rate vs. Formal Contact Rate

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Administratization Rate vs. Prison Population Rate

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Figure 5. Administratization Rate and Trial by Jury38