Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective

Abstract

Prosecutorial discretion has been apointof controversy in the United States. American prosecutors' essentially unchecked discretion and theiroverwhelming dominance in pleabargaining have long been criticized as inconsistent with the principles offairness, equity, and accountability on which the system ofjustice in the United States is based. In considering possible American law reform, scholars and commentators have suggested the possibilities of reforming the American system by referring to the experience of continental law countries. In the context of prosecutorial practice, these reformers are especially impressed by the principle ofcompulsory prosecution and the consistent control that is placed on the exercise of prosecutorial discretion in continental law countries. Continental law systems, however, have undergone significant changes in the past 20 years. This article documents recent developments in prosecutorial practices in the United States and in three continental law countries. It comparatively analyzes the differences between the American and continental prosecutorial systems and explores the possibilities ofreforming certain aspects ofthe American prosecutorial system by referring to the experience of continental law countries.