From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure

This article explores the development of American plea-bargaining-like practices in Germany, Italy, Argentina, and France. These four countries are civil law countries with criminal justice systems that the author defines as inquisitorial. In an inquisitorial system, criminal procedure is conceived as an official investigation performed by an impartial state official to determine the truth. In contrast, the American system of criminal justice is defined as adversarial. In an adversarial system, criminal procedure governs a dispute between two parties (the prosecution and defense) before a passive decision-maker (judge and/or jury) with an eye toward the expedient disposition of a case. In light of the differences between these systems of justice, the author proposes a new theoretical framework for understanding the impact that the adoption of plea-bargaining-like procedures will have on inquisitorial system jurisdictions. The author uses the metaphor “legal translation” to capture his understanding of this new theoretical framework. Specifically, the author examines how the transfer of the legal idea of plea bargaining has (or has not) created a movement toward a more “Americanized” system of justice in each of the four civil law countries surveyed.

“Given that each of the jurisdictions examined has translated plea bargaining in a different way, American influences may end up producing the fragmentation and divergence, rather than the Americanization of the criminal law procedures of the civil law tradition.” p. 7