The adverse effect of trial duration on the use of plea bargaining and penal orders in Italy

The average duration of first-instance criminal trials has steadily increased in Italy over the last 20 years. Over the same period, the use of both plea bargaining and penal orders has steadily decreased. 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 phenomenon can be explained by the unique regulation of the Italian statute of limitations: 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 the use of trial-avoiding procedures that result in a criminal conviction. In an instrumental variable analysis on a panel of 140 first-instance judicial districts over the period 2005–2021 I find that longer first-instance trials decrease the use of both plea bargaining and penal orders in Italy. The results of the analysis call for a reform of the Italian statute of limitations, considering its perverse effect on defendants’ incentives.