Plea bargaining's triumph.

• Author: Fisher, George
• Position: Statistical Data Included

The Yale Law Journal Volume 109, Number 5, March 2000

Though originally an interloper in a system of justice mediated by courtroom battles, plea bargaining now dominates American criminal justice. This Article traces the path of plea bargaining's progress. The forum is a single Massachusetts county in the nineteenth century, but the lessons of the work extend to America as a whole.

The path of plea bargaining's rise was in great part a function of the powers and interests of individual courtroom actors. Although criminal defendants play a distinct part in this story, the most important actors prove to be prosecutors and judges. In the early decades of the nineteenth century, plea bargaining was the work of prosecutors, who found natural incentives in the quick and easy victories it gave them. But because judges--and not prosecutors--held most of the sentencing power and therefore most of the plea-bargaining power, plea bargaining could spread no further than those few cases in which prosecutors happened to hold the balance of sentencing power. Only in murder cases and in cases arising under the Massachusetts liquor-licensing law did prosecutors have substantial sentencing power, and so plea bargaining remained largely confined to these narrow categories.

Plea bargaining could not spread across the entire criminal spectrum until judges became partners in the cause. Through the first three-quarters of the nineteenth century, judges showed far less enthusiasm for plea bargaining than did prosecutors. After all, judges lacked prosecutors' natural incentives to plea bargain. Plea bargaining did not assure them "victory," and they did not suffer under the workload pressures prosecutors faced. Moreover, judges had principled objections to dickering for justice and prideful objections to sharing sentencing authority with prosecutors in the course of plea bargaining. Only in the last quarter of the century did these various obstacles to judicial participation begin to give way. Among the most important catalysts of change was the revolution in tort law brought on by the mechanization of manufacture and transportation. A flood of complex civil cases persuaded judges of the wisdom of efficient settlement of their criminal cases.

Claiming now the patronage of the two principal power-brokers in the criminal courtroom, plea bargaining quickly grew to be the dominant institution of American criminal procedure. Not only did it become the primary mode of settling almost all criminal cases, but it also became the principal arbiter of the success of other new institutions of criminal procedure. Plea bargaining's role in fostering the rise of probation was quite direct: The procedural formula that later took the name "probation" was popularized in the first half of the nineteenth century by Massachusetts prosecutors who sought a plea-bargaining technique they. could employ without judicial cooperation. The rise of public defenders' offices owes a similarly direct debt to plea bargaining: Early proponents of the public defender attempted to win support within legislatures and the established bar by arguing that the new defenders would be ready participants in plea bargaining--a strategy that became prophecy. Conversely, the interests of plea bargaining helped to defeat the indeterminate-sentencing movement. A true indeterminate-sentencing scheme, in which judges had no power to dictate sentences, would have brought plea bargaining nearly to a halt. So those judges and lawyers who valued plea bargaining made sure that such a scheme never came about, and they worked to frustrate any sentencing innovation that advanced the indeterminate ideal.

In the end, the most vivid testimony to the dominance of plea bargaining within American criminal procedure is this simple fact: It is difficult to name a single procedural innovation of the last 150 years that has been incompatible with plea bargaining's progress and has survived.

There is no glory in plea bargaining. In place of a noble clash for truth, plea bargaining gives us a skulking truce. Opposing lawyers shrink from battle, and the jury's empty box signals the system's disappointment. But though its victory merits no fanfare, plea bargaining has triumphed. Bloodlessly and clandestinely, it has swept across the penal landscape and driven our vanquished jury into small pockets of resistance. Plea bargaining may be, as some chroniclers claim, the invading barbarian. But it has won all the same.

The battle has been lost for some time. It was lost at least by the time prominent observers of the 1920s first lamented our "vanishing jury," and in some places it was lost decades before then. In the years since the jury succumbed in a war few knew it was waging, advancing waves of who-lost-the-jury scholarship have tried to retrace the path of defeat. Much of this work has charged that the ever-weightier burden of modern jury trials overbore the system, which surrendered to the plea bargain's efficiency to avert collapse. Another, newer collection of studies looks beyond the courtroom to spy out broader social forces that aided plea bargaining's cause. But in the breadth of its scope, this work overlooks the first principle of conflict: that victory goes to the powerful. And so while we can find many worthy accounts of why the jury fell, we must ask as well why plea bargaining triumphed.

Like most of history's victors, plea bargaining won in great part because it served the interests of the powerful. In the battlefield of the criminal courts, the kind of power that mattered most was the authority to dictate sentences, which judges held in great measure and prosecutors in a compromised but still substantial way. To track the course of plea bargaining's rise, we must discover how prosecutors, who had an almost inherent interest in plea bargaining, secured the power to make it happen, and why judges, who inherently had the power to make it happen, began to see it as in their interest. In this account of plea bargaining's rise, legislators will play a large role, for their power to allocate sentencing authority between prosecutor and judge tilted the terms of battle. And criminal defendants, who held a nominally absolute power to plead or not to plead but who often found themselves hopelessly undefended, must play a real if complicated part.

This is not, then, a "social history" of plea bargaining's rise, if by that we mean a story that highlights the play of social forces and minimizes the role of human actors. Although recent scholars have put forth appealing accounts of the electoral pressure of new immigrants or the analogical force of new industry in the creation of "assembly-line justice," these theories either stand without evidence or fall beside the point. Plea bargaining's triumph was manifestly the work of those courtroom actors who stood to gain from it. To the extent that external actors, especially legislators, played a conscious role in the struggle, they mainly took sides with the ultimately defeated jury trial. And to the extent that broader social forces, such as immigration and industrialization, influenced the outcome of the conflict, they did so by increasing the criminal caseload on the one hand and the civil caseload on the other, thereby altering the interests and options of prosecutors and judges.

And yet in one striking way, the story of plea bargaining's rise is bigger than the actors who made it happen. Plea bargaining, once it took hold, possessed a power of its own. That power derived ultimately from the individual power of those whose interests plea bargaining served, but in its collective form that power made plea bargaining a dominant force in the evolution of modern American criminal procedure. Sometimes, plea bargaining's influence appears on the face of the historical record. This is most tree in the case of probation, one of the most enduring nineteenth-century contributions to our penal mechanisms. I will argue that the birth of probation was in some part, and perhaps in large part, the work of prosecutors who sought a new way to expand their power to bargain for pleas. Once in place, probation grew in symbiosis with plea bargaining and became in time one of the most useful tools of lawyers cutting deals.

Plea bargaining's role in shaping other procedural institutions appears more subtly in the historical record. But the unmistakable correlation between those procedural changes that have survived and thrived and those that aided plea bargaining's cause compels a conclusion that plea bargaining has so fast a grip on our institutions of justice that antagonistic institutions cannot survive. The demise of the indeterminate sentence, one of the most promising of the late nineteenth century's progressive brainchildren, bears the mark of plea bargaining's malice. A true indeterminate sentence, in which only prison officials and parole boards could set the length of criminal sentences, would have stripped both judges and prosecutors of the power to bargain over the length of terms and would have hobbled the plea-bargaining regime. But though widely promoted, tree indeterminate sentences never emerged, and even the half-measure that we have come to know as parole found its development stunted when it threatened plea bargaining's dominance.

Probation's rise and the indeterminate sentence's fall are but two of plea bargaining's victories. Before canvassing the rest, we need to follow the course of plea bargaining's ascent to learn the source of its strength. I will tell this story as it unfolded in America, for although the earliest instances of plea bargaining may well have happened elsewhere,(1) and although plea bargaining in time would spread across the common-law world and beyond, it triumphed here first. Within America, I will focus on Massachusetts. Massachusetts is the birthplace of probation, and though I had little suspicion when I set out l...