Thanks for your comment and your very good questions! I am especially glad you asked, since I address your questions in more detail in a forthcoming book, Plea Bargaining Across Borders (Aspen, Oct. 2009)(Thank you for giving me the opportunity to self-promote!).

In brief, the causes for this trend vary from country to country. In Eastern Europe, the trend toward plea bargaining was driven by a general push toward efficiency (there was a rise in organized crime and an outdated and slow inquisitorial system) and formed part of broader law reforms, some of which were promoted by U.S. organizations like ABA-CEELI and agencies like DOJ-OPDAT (which specifically encouraged the adoption of plea bargaining).

In Germany, it was practitioners and judges who began resolving cases consensually on their own. The main cause was an increase in more complex criminal cases. But other causes arguably include the rise of a more aggressive defense and, I believe, to some extent, the influence of comparative legal education, which had informed German lawyers about plea bargaining in the United States. So all of the factors you indicated in your comment played a role in the global spread of plea bargaining.

As for Japan (on which I have a chapter in the book), you are right that the vast majority of defendants already confess. Some scholars, like David Johnson, assert that what is happening is the functional equivalent of plea bargaining. I think he is right to some degree. But remorse and reconciliation seem to be important elements of the procedure in Japan, so I don\’t think that their implicit exchange of confessions for lower sentences is quite the same as our plea bargaining, which is driven primarily by efficiency considerations.

That said, with the introduction of jury trials and broader victims’ rights, as well as a rise in crime rates, Japan has begun introducing various mechanisms to expedite proceedings. So efficiency is becoming an increasingly important consideration in Japanese criminal justice. Moreover, a limited form of plea bargaining has been expressly considered (but so far rejected) as a way to obtain the cooperation of insiders in complex organized crimes.

Very interesting post, very interesting trend. I’d love to know more about the causes. What’s driving civil law countries to adopt plea bargaining? What sectors of society — or of the bar — are pushing for increased use of plea bargaining? Are there other social factors that are putting plea bargaining on the agenda? E.g., increasing crime rates, the influence of American legal education, related legal reforms? Perhaps fewer defendants confessing? Or is there just a general desire for the perceived efficiency gains of plea bargaining?

In the case of Japan, most studies report that 92%+ of defendants confess to the crimes they are indicted for. With those kind of statistics, it’s hard to see why prosecutors would need or want to enter into plea bargaining. Or perhaps the confession statistic indicates that de facto plea bargaining is already occurring on a large scale. In any event, many thanks for bringing the new German legislation to our attention.