Offer You Can't Refuse? Punishment Without Trial in Italy and the United States: The Search for Truth and an Efficient Criminal Justice System

This Article compares the steps taken by Italy and the United States to reconcile the need for an efficient criminal justice system on the one hand, and the desire to achieve justice or discover the truth on the other. Part I describes how accusatory and non-accusatory systems define truth, and how the structures of their systems reflect these different definitions of truth. Part II traces trial avoidance mechanisms in Italy, both under the 1989 Code, as well as a limited first step adopted in 1981. This part discusses the tensions these changes created between judges and prosecutors in Italy, and provides an in-depth examination of the tortuous path by which the Italian Constitutional Court has attempted to resolve these conflicts. Part III discusses the extent to which Italy's trial-avoidance devices mirror the practice of plea bargaining in the United States, the extent to which plea bargaining is actually characteristic of an accusatorial system, and similar types of tensions between judges and prosecutors that exist in the United States. In addition, this part examines how recent trends in the United States, such as so-called "Three Strikes" laws and the Federal Sentencing Guidelines, have affected plea bargaining in the United States, and how these developments counsel that Italy proceed with caution when considering proposals to broaden their trial-avoidance mechanisms.