How Lengthy Trials Reduce the Use of Plea Bargaining and Penal Orders
Gabriele Paolini is currently an official at the Italian Tax Judiciary Council, at the Office for Studies and Reforms.
This post is based on his recent article “The adverse effect of trial duration on the use of plea bargaining and penal orders in Italy”, published in the European Journal of Law and Economics (2024).
Plea bargaining and penal orders enable the imposition of criminal convictions without ordinary trials. Over the last three decades, both procedures have been adopted by an increasing number of jurisdictions worldwide,[1] becoming the most common way to sentence defendants in many criminal justice systems. [2] However, in Italy, the use of both plea bargaining and penal orders has steadily decreased over the last 20 years, while the average duration of first-instance criminal trials has steadily increased over the same period. This situation contradicts the predictions of the economic models of plea bargaining since longer trials, by imposing higher costs on both prosecutors and defendants, should result in a greater use of trial-avoiding procedures. The same reasoning can be extended to penal orders, as procedures to impose criminal convictions while avoiding ordinary trials.
The unique regulation of the Italian statute of limitations can explain the phenomenon. If trials last longer than a certain time threshold, defendants must be acquitted, regardless of the evidence collected against them. Hence, longer trials reduce defendants’ incentives towards using trial-avoiding procedures, because the latter result in certain convictions, albeit associated with milder sentences.
An obstacle to the empirical assessment of the effect of trial delay on the use of trial-avoiding procedures is that of reverse causation. On the one hand, longer trial delays should decrease the use of plea bargaining and penal orders, in the presence of an Italian-style statute of limitations. On the other hand, a lower use of trial-avoiding procedures should result in more ordinary trials, resulting in longer trial delays, under resource constraints.
Instrumental variable (IV) analysis provides a possible solution to the identification problem. An instrument is a variable that directly influences the explanatory variable, in this case trial delay (relevance condition), without exerting direct influence over the outcome variable, in this case the use of trial-avoiding procedures, unless through its effect on the explanatory variable itself (exclusion restriction), while at the same time not being systematically correlated with the outcome variable (randomized assignment). [3]
Two variables are separately used as instruments: the number of judges per inhabitants and the average yearly temperature in judicial districts. Both variables should exert an influence over trial delays (relevance condition), while not directly influencing the use of plea bargaining and penal orders (exclusion restriction), and their values should be assigned independently from the extent to which trial-avoiding procedures are used (randomized assignment). The results of instrumental variable analyses on a panel of 140 Italian first-instance judicial districts over the period 2005–2021 show, according to theory, that longer first-instance trials cause a decrease in the use of both plea bargaining and penal orders in Italy.
(1) Máximo Langer, Plea Bargaining, Conviction Without Trial, and the Global Administratization of Criminal Convictions, 4 in Annual Review of Criminology (2021).
(2) Gabriele Paolini, Elena Kantorowicz-Reznichenko & Stefan Voigt, Plea Bargaining Procedures Worldwide: Drivers of Introduction and Use, 22 J Empir Leg Stud 27 (2025).
(3) Cunningham, S. (2021) Causal inference: the mixtape. London: Yale University Press.
Cite as: Gabriele Paolini, How Lengthy Trials Reduce the Use of Plea Bargaining and Penal Order or Why Longer Trials Mean Fewer Plea Deals in Italy, LAW AS SCIENCE: LEGAL METHOD LAB (May 15, 2025).
