Yosef Zohar
The Institute for Safety in the Criminal Justice System

Market Norms and the role of Criminal Justice

Drawing by Dr. Hagit Turjeman, head of the Criminology department at Western Galilee College

“What makes a society or civilization successful is attention to its norms, and especially protection of norms that enable cooperation. We economists were naive – we did not understand that the accepted norms in the market would cause anti-social behavior”, Prof. Paul Romer, 2018 Nobel laureate in Economics.[1]

Market norms and the role of criminal justice

It is not new that the accepted norms in the market may harm the social interests. The press has an important role in democracy “to help us as a society reach the truth and fact”,[2]

But in the era of Google and Facebook, the press faces the threat of elimination. Similarly, market norms have turned criminal law into a negotiation-based arena, at the expense of evidence-based and truth-finding public legal proceedings.

In the 1970s and 1980s, the use of alternatives to criminal law, such as plea bargains, to the traditional judicial process expanded. These alternative procedures, which were called “Bargained Justice”, if you will, “market justice“, were promoted with the same tools and terms in which capitalist liberalism was justified: freedom of choice, efficiency, and the improvement of utility and well-being (the rise of “market justice” caused great optimism as to the direction in which criminal justice is progressing – optimism which was reflected, for example, in the legal-economic literature at that time).[3]

Thus, for example, according to the classical theoretical model of the Plea Bargains market,[4] rational parties agree on the expected trial result and save litigation costs. From this the argument for improvement and progress arises; since if the parties entered into the contract freely they necessarily improved their situation – there is no need to supervise the proceedings, and since the basic values ​​in criminal law, such as conviction beyond a reasonable doubt – are embedded in them, the punishments are supposed to reflect the degree of guilt, to be moderated in a fair way, and create incentives for the system to pursue those against whom the evidence is strong and not those whose guilt is in doubt.[5],[6]

Therefore, the results of bargaining in the shadow of the trial were considered appropriate just as the result of the trial was appropriate, and the prosecution’s discretion in allocating resources between trials and plea bargaining was considered effective similar to the resource allocation mechanism in the market.[7]

This led to the conclusion that supervision and control or regulation on the work of the prosecutor’s office would harm its effectiveness, and the prosecution can and should use its power, also as a bargaining tool, in order to advance the goals of the criminal justice system. Moreover, some even believed in the possibility that plea bargaining would create a separating equilibrium between the guilty who would prefer to admit their guilt in exchange for a reduction in their punishment, and the innocent who would prefer to fight for their innocence.

The globalization of the American concept of “market justice” in the field of criminal law has spread like an epidemic within the framework of legal reforms in various legal methods around the world,[8] made the method of encouraging agreements and plea bargains central in the field of criminal disputes and led to the almost complete disappearance of criminal justice according to the classic model.[9]

The search for the truth carries different meanings in the adversarial and inquisitorial legal methods; In the inquisitorial method it is the search for the neutral truth by an expert judge who applies the law from above and is responsible for finding it, and in the adversarial method it is a rivalry between two truths that will be resolved in the process given to the parties and sometimes decided by the people represented by the jury. Therefore, while the inquisitorial judge must answer the question: who committed the crime and why, the adversarial judge must decide: is the accused guilt was proven.[10]

Despite this, the “Vanishing Trial” phenomenon,[11] is also spreading in countries where the inquisitorial system is practiced. In these countries, the scope of plea deals is smaller, although alternatives designed to shorten procedures with the consent of the parties have developed, the agreement is not on the question of guilt, but on an abbreviated procedure based on a less extensive investigation, or on a waiver of another basis from the usual formal procedure.[12] These procedures affect the “Vanishing Trial” phenomenon in Europe, they have significant consequences on the roles of the various criminal justice actors and they invite possibilities for expansion and development.

The result of the era of the “Vanishing Trial” and the multi-door court, is that today about 99 percent of convictions in federal courts in the United States are based on guilty pleas, and in state courts the situation is not far from that.[13]

In Australia about 61 percent of criminal cases end without a full legal process, in England and Wales about 70 percent, in Scotland about 85 percent.[14] In Israel, more than 95 percent of the criminal cases in the Magistrate’s Court, and approximately 90 percent of the cases in the district courts are resolved without a full evidentiary trial – mainly following plea bargaining of various types or admissions of guilt without formal plea deals.

Although procedures similar to a plea bargains have been integrated into the legal systems of European countries, findings show that only about 15 percent of the criminal cases there ended in plea bargains. However, the phenomenon of the “vanishing trial” has penetrated these countries as well, even if it took the form of a waiver of the claim on an element of the formal procedure, as mentioned above. Thus, for example, in France, the investigation phase has almost disappeared, and less than one percent of criminal cases are handled by an investigating judge.[15] Similar procedures penetrated the countries of South America,[16] to Asian countries, among them China and lately even into Japan.

Examining the various justifications for implementing trial waivers, raises difficult problems in these procedures. Thus, for example, the possibility of bypassing public investigating of the evidence during the trial, could lead to the conviction of innocent people. Alternatively, the justification of saving resources may turn out to be wrong empirically as it turns out that the average length of time to manage a case increases and the productivity of the court system decreases. This is due to the fact that the possibility of ending proceedings without a trial diverts the resources of the parties to conduct “war of attrition” in order to obtain “good price” in plea bargains, at the expense of sorting, filtering and strict supervision that would save resources later in the process, and harming the presumption of innocence, the cornerstone of every free society.

This result also casts doubt on the justification of the deterrence for these procedures – that is, the belief that the plea bargains will lead to the conviction of many more guilty parties. A similar difficulty also arises in terms of another justification – the right to trade the right to a trial, since it seems that this right does not necessarily benefit the accused.[17],[18]

Criminal justice has therefore become an arena based on negotiations between legal professionals without the participation of the parties (accused and victims of a crime) – instead of a public procedure based on evidence that preserves the principle of the presumption of innocence.

As part of the preliminary hearing in Israel, the judges are allowed to review the investigation material and the list of all materials collected or recorded by the investigating authority, as well as the investigation material and the list of all materials collected or recorded by the defense, clarify with the parties their position in the case and examine the possibility of agreements between them. However, the judges use their authority as a shadow, and sometimes as a threat, designed to encourage the promotion of agreements outside the courtroom. the absence of a decision does not necessarily lead to a therapeutic approach by the judges, and their reference to deeper and broader aspects of the conflict within the framework of the management of the contractual arena is limited.[19] In addition, this framework excludes the victim from the equation and sometimes excludes even the accused from the process.

Back to the framework of pursuing the truth and justice

The problems explained above can be solved by designing a preliminary procedure in which the agreement is not on the question of guilt, but on a faster procedure based on a less extensive investigation. In a preliminary procedure such as this, the judges are given new roles arising from the need to shorten proceedings, but maintain the commitment to the pursuit of the factual truth and safety measures against false convictions, enable increased participation of the parties (victims of crime and accused), and assist in finding an in-depth solution at the root cause of the criminal conflict.

In order to formulate such a preliminary procedure, the format of the preliminary hearings in the criminal procedure, and the responsibility of the judge in the hearings, must be changed to a procedure that restores the authority of the court to conduct judicial control over the decision to prosecute, supported by the investigative material that will be forwarded to the judge in advance for review, questioning the accused and clarifying the position of the victims of the offense, and establishing administering a simple procedure in the preliminary phase, without conditioning the process with his admission.

In order to ensure that even in cases where defendants prefer to admit their guilt in court, a process of ascertaining the truth will still be conducted, the criminal procedure must be changed so that the following conditions are met:

  1. An indictment to which a defendant has confessed will not be considered a proven fact against him (In Israel – amendment of Article 154 of the Criminal Procedure Law).
  2. In any charge in which the accused has admitted and/or waives the right to hear the prosecution’s witnesses and other rights arising from the adversarial method, the responsibility for the investigation will be transferred to a judge who will conduct the proceedings based on the investigation material and questioning of the accused.
  3. The questioning of the accused will include receiving a full explanation; What the accused did, how he did it and why, and why he confesses, and verification of the existence of strong corroborating evidence for the accused’s confession. (In Israel – amendment of Article 12a of the Criminal Evidence Law).
  4. During the hearings there will be a direct dialogue between the judge and the accused and the witnesses. The parties will be given the opportunity to request the court to ask certain questions, and to conclude orally after the investigation phase and after the sentence arguments phase.

In view of the recent developments of problem-solving courts and restorative justice, it is possible to ask and learn from these procedures in order to equip the judges with new tools in their administrative work. These tools will be aimed less at closing the gaps between the parties and at technical issues and more at the deep questions of the benefit of the criminal conflict.

Development of tools such as these, in dialogue with the field and striving for appropriate training for judges, prosecutors and defense attorneys, may be the next step in the development of the criminal justice system. The judges will be able to expand the boundaries of their administrative role to promote broader goals than the efficiency of closing cases within the preliminary procedure which is the main channel for their management of negotiations on plea bargains today. And in the near future, this approach may be the front door to judicial review of indictments and the conduct of simple and speedy criminal trials.

The proposed framework can be expanded in the spirit of principles of conflict resolution in alternative ways in the courtroom. Judicial procedures that allow constructive and flexible interactions among victims and other participants in the criminal justice, enable treatment deep aspects of the criminal conflict rehabilitation issues, may serve as a creative platform for the development of innovation. Equally important, such procedures will be an important step in promoting the idea of ​​active citizenship in the field of criminal justice, and will allow a transition from “market justice” back to the framework of pursuing the truth and justice.

* The post is based on joint research with Prof. Miki Alberstein and Dr. Beatrice Coscas-Williams. The research was conducted as part of the JCR, Judicial Dispute Settlement Research Project, with the support of the ERC, at the Faculty of Law at Bar Ilan University, led by Prof. Alberstein

[1] The Economists failed a strong government is needed“, TheMarker

[2]The Economists failed a strong government is needed“, TheMarker.

[3] Thomas W. Church. In criminal defense of bargain justice’. Law & Society Review, 1979.

[4] William M. Landes, An Economic Analysis of the Courts, 14 J.L. & ECON. 61 (1971)

[5] Bibas Stephanos, Plea-Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463

[6]  Stephanos Bibas, The Machinery of Criminal Justice, Oxford University Press, 2012.

[7] Frank H Easterbrook. Criminal procedure as a market system. The Journal of Legal Studies, 12(2):289–332, 1983.

[8] Langer Maximo, from Legal Transplants to Legal Translations: the Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int’l L.J. 1 (2004).‏

[9] International Fair Trials. The disappearing trial: towards a rights-based approach to trial waiver systems. Technical report, 2017.

[10] DETHOMAS A., « Un exemple de droit américain », in BENNILOUCHE M., Les procédures accusatoires, ceprisca collection Colloques, (2012), p. 171-178, p. 172.

[11] Marc Galanter. The vanishing trial: An examination of trials and related matters in federal and state courts. J. EMPIRICAL LEGAL STUD., page 112, 2004.

[12] Coscas-Williams, B. & Alberstein, M. (2019). A Patchwork of Doors: Accelerated Proceedings in Continental Criminal Justice Systems. New Criminal Law Review 22 (4): 585–617.


[14]  Oren Gazal Ayal & Limor Riza, Economic Analysis of Plea-Bargaining and Prosecution, in Criminal Law and Economics 145 (Nuno Garoupa ed., 2009).

[15] Les chiffres- Clés de la justice pour l’année 2020, Ministère de la Justice

[16] Langer Maximo, from Legal Transplants to Legal Translations: the Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int’l L.J. 1 (2004).

[17] Zohar, Y., & Michaeli, M. (2014). Trial in the Shadow of Bargaining – The Feedback-Cycle Effect of Plea Bargaining, Aley Mishpat, 11, 153-226.

[18] Weiss, U., & Zohar, Y. (2017). The Plea Bargaining Game – Plea Bargains as a Sort of Extortion. In: Harel, A. (Ed), The Criminal Procedure volume (pp. 183-215). The Buchman Faculty of Law Book Series.

[19] Luz Kanner, S., Rosen, D., Zohar, Y., & Alberstein, M. (2019). Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution. New Criminal Law Review, 22 (4), 494-541.

About the Author
Researcher and Lecturer, Department of Criminology at Western Galilee College. Managing director, The Institute for Safety in the Criminal Justice System. Research Fellow, Judicial Conflict Resolution (JCR) project at the Faculty of Law, Bar Ilan University.
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