Woman Holding Plea Deal

Justice systems around the world face heavy criminal case loads. The need to reduce backlog is often the impetus for methods of criminal case-disposition other than trial. Trial waiver systems like plea bargaining and summary dispositions can also reduce pretrial detention periods and combat crime through cooperation agreements.

There are different types of trial waiver models; what is acceptable in one country, may meet disapproval in another. For example, the civil-law tradition posits the search for truth as an imperative inconsistent with procedures that short-circuit the fact-finding process. In some countries, reluctance to introduce plea bargaining reflects the lingering scars of an authoritarian past, a persistent suspicion of government overreach, and close relationships between prosecutors and judges. Plea-bargaining is seen as susceptible to corruption, with more favorable consequences offered to the powerful. For example, Justice Dahiru Musdapher, former Chief Justice of the Nigerian Supreme Court, criticized the importation of plea bargaining to Nigeria as creating a system that provides “[a] soft landing to high profile criminals who loot the treasury entrusted to them."

If designed thoughtfully, summary criminal dispositions can be valuable components of a criminal justice system. There are many successful models. As with any procedural reform, however, a trial-waiver process must be adapted to fit a nation’s institutional and historical context. The fairness of these systems depends on their implementation, including transparency, effective legal representation, and judicial oversight.

Features to Consider in Trial-Waiver Models

  • Prosecution control of charge
  • Victim agreement
  • Types of Crime
  • Types of punishments or other consequences, including dismissal after supervision
  • Judge involvement in negotiation
  • Standards limiting plea discount or trial penalty
  • Defendant's right to evidence
  • Defendant's right to independent counsel
  • Public access to process
  • Availability of separate judge for trial
  • Judicial Review
    • Voluntariness
    • Propriety of plea
    • Evidence, including requesting additional evidence
    • Propriety of sentence

    Examples of Trial Waiver Models

    Open palm pair of hands

    Plea Bargaining

    • Prosecution and defense negotiate reduction in sentence and/or charge in exchange for the accused's guilty plea
    • Judge reviews agreement, sentence, and voluntariness. If judge rejects plea, trial will proceed
    • May be restricted to certain types of offenses
    • May be limited to cooperation agreements
    Drawing of a handshake

    Negotiated Settlement

    • Prosecution and defense agree on a proposed sentence or judge initiates negotiations
    • Hearing is held and judge reviews the case file and defendant's background
    • If judge rejects prosecution's proposed sentence, case proceeds to trial
    • Sentencing discounts for trial waiver may be regulated by statute, to limit "trial penalty"
    • Law may require disclosure of all relevant evidence, not only exculpatory
    Line drawing of a Judge with gavel behind a desk

    Abbreviated Trial

    • More judicial oversight
    • Evidence – including proposed admission of guilt – informally presented to judge
    • Judge may request additional evidence
    • Judge proposes potential sentence
    • Accused may accept or proceed to trial with a different judge

    National Systems

    The following summaries illustrate the broad range of approaches that different countries have adopted. These examples focus on trial waivers and do not include similar tools that allow for diverting criminal cases to nonpenal proceedings.


    Nigeria adopted plea agreements in 2015. Before offering a plea, the prosecution must consult with the investigating police, consider the public interest, and obtain the victim’s consent. The presiding judge reviews the agreement for voluntariness. If the judge decides to impose a lesser sentence, the prosecution may appeal; if the judge deems a heavier sentence appropriate, the defendant may withdraw from the agreement and proceed to trial before a different judge.

    South Africa also has a codified plea-bargaining process. For minor non-carceral offenses, the prosecution and defense negotiate an agreement. The judge is not obligated to review the evidence and may impose any lawful sentence. For pleas involving more serious crimes, the judge must confirm the factual basis for the charges and that the defendant’s plea is voluntary. This may be done in writing rather than through a colloquy in open court. The judge may accept the plea agreement or reject it and schedule a trial date. If the plea is deemed acceptable, the court will consider the prosecution’s sentencing recommendation, but the court has full discretion over the final sentence.


    China introduced a form of plea bargaining in 2016 as a pilot project in eighteen cities. The reform was implemented nationwide in 2019. In exchange for a lesser sentence, the accused must confess to the charged crime, accept the proposed sentence, and sign an affidavit. In a related reform, defendants who confess voluntarily and perform “meritorious services” are eligible for nonprosecution.

    Japan instituted a broad range of criminal justice reforms in recent years; plea bargaining came into effect in 2018. Prosecutors have the authority to decline, to indict, or to file less serious charges against defendants who agree to cooperate and provide statements or evidence helpful to the criminal investigation of other individuals or entities. This tool is permitted only for certain crimes, including antitrust, drug and weapons offenses, and organized, corporate, and white-collar crime. Responding to concerns from the victims’ rights community, policymakers chose not to allow plea bargaining for most violent and property crimes. Defense counsel must be involved in the negotiations and can reject the terms of a plea offer to protect their client’s interests. False statements by the defendant (such as misrepresentations when implicating another person) constitute the commission of a new crime.

    Malaysia codified a plea system in 2012, though the practice took place informally for many years. Limited to certain offenses, the law allows for negotiation of charge and sentence at the initiation of the defendant. The prosecution provides the court with the proposed plea agreement, including a minimum and maximum acceptable sentence. If the judge approves, the judge must impose a sentence within this range. The entire plea process is recorded and made part of the record. If the judge rejects the proposed agreement, the prosecution and defense can resume negotiations or proceed to trial.


    In England and Wales there is no bargaining process as to sentence. After initial charges are filed and investigated, the prosecution and defense may engage in informal, off-the-record discussions about what charges will proceed. However, a plea agreement to a lesser charge does necessarily determine the accused’s sentence. The court is not bound to accept the agreement; even if the lesser charge is deemed appropriate, judges have full discretion over sentencing. The defense may request from the court an indication as to the maximum sentence on a guilty plea. Judges are not required to provide this, but if they do, it is binding. When assessing an appropriate sentence, judges consider the stage of proceedings (awarding early dispositions). It is noteworthy that prosecutors in England do not have independent authority to offer sentencing discounts, immunity, or other incentives to defendants. In complex fraud cases, they can collaborate with the defense and present a joint submission to the court with a recommendation for sentencing.

    France introduced comparution sur reconnaissance préalable de culpabilité (CRPC), a guilty-plea procedure available for criminal offenses subject to a sentence of ten or fewer years. Certain serious crimes, such as murder and rape, are excluded. In exchange for admitting guilt, the defendant will be sentenced either to a fine or up to one year in prison. The first phase of this process—the sentence proposal—involves negotiation between the prosecution and the accused, with counsel. The defense may request access to relevant evidence. If an agreement is reached, the matter appears before a judge for an approval hearing. During this hearing, the judge reviews the case file and the background of the accused to assess whether the sentence proposal is appropriate. The court must also confirm that the accused’s agreement is knowing and voluntary. If the court rejects the proposal, the case will proceed to trial.

    For minor offenses, prosecutors may introduce composition, offering the accused the option of diversion. In exchange for an admission of guilt, the defendant will be subject to a fine, restitution, or community service. A judge must review and accept the agreement.

    Georgia empowers the accused, prosecutor, or the court to propose a procedural agreement. After consulting with the victim, the prosecutor may propose to the court a reduction in the charges or sentence. The accused must confess to the crime. When assessing whether this mechanism is appropriate, the prosecution considers the nature of the offense and extent of the defendant’s involvement, as well as the public interest. The judge must confirm voluntariness and may modify the agreement with the consent of the prosecutor and defense. Trial waivers are widely used in Georgia and many involve a fine (often quite high) in lieu of a prison sentence. Cooperation agreements are also permitted if the defendant has information valuable to resolving an independent crime.

    Germany assigns primary responsibility to the judge in its absprachen process. The accused may offer to admit to the charges at any time, pretrial or during trial, in exchange for the judge’s assurance that the sentence will not exceed a determined limit or that some charges will be dismissed. The accused, prosecutor, or judge may initiate absprachen, but negotiations may also proceed between the accused and the judge without the involvement of the prosecution. The accused has full access to the dossier before entering these discussions. The judge is obligated to examine the credibility of the defendant’s admission of guilt, review the evidence, and, if necessary, order that additional evidence be produced. German appellate courts have observed that criminal sentences must be proportional; evidence of significant differences between sentences arising from asprachen and those imposed after trial are suspect.

    Italy introduced patteggiamento through legislation, to reduce the number of criminal trials. This trial-waiver process is permitted for delineated categories of offenses, including some felonies. In lieu of trial, the prosecution and defense discuss a compromise sentence (a reduction of up to 1/3 of the statutory sentence and not to exceed five years). Charge-bargaining is not permitted. After reviewing the evidence, if the judge finds no reason to acquit and determines the charge and sentence are proportional, the judge will impose the agreed upon sentence. If the prosecutor rebuffs defense overtures to initiate patteggiamento, after a conviction at trial, the defense can request judicial review of the prosecution’s refusal and grant the defense a sentence reduction.

    In the Netherlands, the public prosecutor may propose an alternative resolution of criminal charges prior to trial for crimes subject to a sentence of no more than six years. As part of this process, called a criminal transaction, the defendant is asked to accept one or more conditions set by legislation (e.g., fine, restitution, unpaid labor, enrollment in a training program). If the accused agrees, prosecution is suspended until the conditions are met. The accused avoids trial, civil liability, and a criminal record, but the information is registered in the Dutch judicial information system and may be considered in future prosecutions. The prosecutor must inform the victim, who has the right to file an objection with the court of appeal. The court may revive the prosecution if deemed appropriate. But there are categories of crimes ineligible for this process, such as those implicating significant national or social issues. In complex cases, a proposed criminal transaction will be reviewed by the Board of Procurators General and the Ministry of Justice. If approved, this “high or special” transaction will be made public, along with the ministry’s explanation of why it was appropriate.

    The Dutch also permit penal orders, whereby the Prosecutor’s Office, without the involvement of a judge, may offer the accused the option to waive full prosecution in exchange for payment of a fine, restitution, or another enumerated condition. Although eligible offenses are those subject to a sentence of no more than six years, penal orders cannot impose a period of incarceration.

    The Russian Federation permits special trial procedures whereby a defendant may agree to the charges and request sentencing without trial. There is no negotiation as to charge or sentence; the defense attorney and judge have limited roles. The special trial procedure may be used only for crimes subject to a penalty of up to ten years of imprisonment. More than half of all criminal cases in Russia are resolved through this process. Russia also permits cooperation agreements where the defendant can provide information helpful to an independent criminal investigation in exchange for a more lenient sentence. In contrast to special trial procedures, defense counsel and the court are involved with the negotiations.

    North America

    In Canada, resolution discussions usually take place during the statutorily mandated pretrial conference. The pretrial judge, prosecutor, and defense counsel discuss trial issues and scheduling. The judge might express preliminary views on legal issues to narrow the scope of the trial. (The pretrial judge will not preside over the trial.) Some Canadian judges take an active role in resolution discussions; others do not. If the prosecution and defense reach agreement on a sentence, the court will ratify unless it deems the punishment to be too lenient or otherwise inconsistent with the administration of justice.

    Plea bargaining has been a feature of the United States criminal justice system since the early twentieth century. Over 90% of all U.S. criminal cases are resolved by way of plea agreements. The U.S. model is broad: plea agreements are permitted in all criminal cases; they allow the parties to negotiate on facts, charge, or penalty; and they may include a waiver of the right to appeal. In most U.S. jurisdictions, the judge’s role is limited to assessing whether a defendant’s plea is voluntary and accepting the proposed sentence. Critics of the U.S. system question the degree of control accorded the prosecution and the absence of a neutral and thorough pre-plea review of the evidence. They note that the prevalence of a “trial penalty”—harsher sentences imposed after trial—creates subtle systemic coercion and cite as an example a 2015 study by the National Registry of Exonerations that found sixty-five (44%) out of the 149 defendants exonerated in the United States pled guilty.

    South/Central America

    Argentina introduced procedimiento abreviado in 1997. This process authorizes the prosecution and defense to reach an agreement as to sentence at any time from indictment until the end of the pretrial phase. The defendant must admit to the offenses described in the indictment. The judge may reject the agreement if the judge disagrees with the charges or determines that additional evidence is needed. If the court accepts the agreement, it will review the evidence in the dossier and can acquit if the evidence does not support the charges. If the court convicts, the sentence cannot exceed the term agreed to by the parties.

    Brazil has different levels of plea bargaining. For lesser, nonviolent offenses carrying a possible prison sentence of less than two years, the accused may agree to a transaçāo penal (penal transaction). The result of the agreement would be no incarceration of the defendant, subject to conditions which could lead to incarceration if violated (e.g., no contact or limited contact with victim or victim’s family, fine, or community service). The defendant does not acknowledge guilt and is not subject to a criminal record or civil liability. The judge must review the proposed agreement during a hearing and state reasons for accepting or denying its terms.

    For certain more serious crimes (e.g., kidnapping, drug conspiracies), the defendant can reach an agreement with the prosecution to admit guilt, cooperate with investigators, and comply with other conditions in exchange for a reduced sentence. This is known as colaboração premiada (rewarded cooperation). Where gangs and criminal conspiracies are involved, the agreement of the accused to give evidence against his confederates can provide judicial pardon, reduced sentence, and so on. This is described as delaçāo premiada (rewarded testimony). Admission of financial crimes and cooperation may result in an acôrdo de leniȇncia (leniency agreement) for an accused party.