Plea Bargaining's Triumph: A History of Plea Bargaining in America.

• Author: Bibas, Stephanos
• Position: Book Review

PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA. By George Fisher. Palo Alto: Stanford University Press. 2003. Pp. xi, 397. $65.

George Fisher's new book, Plea Bargaining's Triumph, (1) is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining's rise elsewhere. The final part applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors.

Academics have already written a number of histories of plea bargaining in Massachusetts and elsewhere, but this one is different. Fisher, a former Middlesex County prosecutor and now a professor at Stanford Law School, brings his prosecutorial perspective to bear in explaining the rise of plea bargaining. I will review Fisher's book from this same perspective, as both of us are plea-bargaining scholars and former prosecutors rather than professional historians.

My thesis is that Fisher adds an important dimension to the history of plea bargaining precisely because he looks at it with a prosecutor's eye. Instead of resting on broader social explanations of plea bargaining, which have become fashionable of late, Fisher emphasizes the caseloads, incentives, and powers of judges and prosecutors. His prosecutor's eye sees the actors' powers and incentives from a rational-actor perspective that purely academic historians often miss. (Though the rational-actor approach looms large in theoretical and normative scholarship about plea bargaining today, it is largely absent from historical accounts.)

In particular, Fisher notes that most histories have focused on the incentive and desire to bargain while assuming that prosecutors had the power to do so. Fisher, however, notes that prosecutors started out with the incentive but not the power to bargain, and judges started with the power but not the incentive. Over the course of the nineteenth century, prosecutors developed powers to bargain unilaterally in some cases. Later, judges developed incentives to cooperate with prosecutors and spread bargaining more broadly, to offset their crushing civil dockets.

Unfortunately, in discussing prosecutors and judges, Fisher pays much less attention to the role of defense counsel. Indeed. his sources limit what he can say, as prosecutors drafted the indictments and motions in the court files on which he relies. Nonetheless, a fuller rational-actor account of plea bargaining must explore the roles of defense counsel as well as prosecutors and judges. Defense counsel develop bonds of trust with prosecutors and judges and establish going rates or prices for particular crimes. In other words, defense counsel serve as repeat players. Plea bargaining is possible without defense counsel, but repeat players grease the wheels, influence defendants' decisions to plead, and balance other actors' powers.

Part I of this Review considers Fisher's in-depth exploration of Middlesex County courts in the nineteenth century. Fisher's thorough review of thousands of court records and newspaper archives explains plea bargaining's rise in two main stages: First, prosecutors used their limited powers to bargain without the cooperation of judges. Fixed penalties for liquor-law violations and murder gave prosecutors the power to charge bargain unilaterally. Prosecutors later developed the technique of placing cases on file (in suspension), which eventually developed into modern probation. Second, judges, who previously had resisted ceding their sentencing power to prosecutorial bargaining, acceded to offset the mounting burden of their civil dockets. This second step allowed bargaining to expand to embrace all kinds and degrees of crime. Fisher is the first scholar to emphasize the growth in civil dockets. His account of the forces at work in Massachusetts is far superior to those of Theodore Ferdinand and especially Mary Vogel, whose work Fisher demolishes. (2)

Part II considers how the lessons of Middlesex County explain the rise of plea bargaining elsewhere. Fisher is perhaps too dismissive of other scholars, such as John Langbein and Milton Heumann, whose accounts of plea bargaining in many ways complement his own. (3) Regardless, Fisher's rational-actor account convincingly explains how and why plea bargaining grew to dominate in New York, California, and England, as well as Massachusetts. Here, as in his account of Middlesex County, the only thing missing is a fuller appreciation of the role of defense counsel.

Part III concludes with the lessons of the past for the present. In recent years, the academic debate over plea bargaining has all too often revolved around whether or not to abolish plea bargaining. But as Fisher's account shows, plea bargaining will not disappear any time soon, especially because caseloads are so large. Even an unusually large drop in caseloads or a few local efforts to ban bargains probably would not kill plea bargaining. Judges, lawyers, and defendants have come to like the swiftness and certainty of bargaining and would keep liking it even if they had time to try every case. These insiders' preferences carry much more weight than the public's grave suspicion of the process. This is true because the insiders have the power, personal stakes, and better information about the low-visibility bargaining process. Thus, bargaining is here to stay. Plea bargaining has triumphed, in Fisher's phrase, because it has endeared itself to the actors with real power.

We cannot turn back the clock two centuries, and it is pointless to keep writing articles that treat jury trials as the norm. More fruitful and practical reform would give judges and defense counsel the power to check prosecutors. Fisher's critique of the United States Sentencing Guidelines rightly emphasizes this point. Prosecutorial control over charging and sentencing led to plea bargaining's rise. Just so, plea bargaining's moderation depends on checking and balancing prosecutors' unilateral charging and sentencing power. The lessons of the past contain the seeds of reform for the present.

1. THE LESSONS OF MIDDLESEX COUNTY

   1. Prosecutors' Tricks of the Trade

      Fisher's tale is a minuet of prosecutors' powers and judges' incentives. His account begins with the appointment of the first Middlesex County prosecutor in 1807 (p. 19). In early nineteenthcentury America, public prosecutors worked part-time for low pay, so they had to maintain private practices on the side. As a result, they had two obvious incentives to plea bargain: First, they sought to ease their crushing workloads and to make more time for their paying private clients (pp. 40-44). Second, they also liked quick, certain, easy victories, which allowed them to boast about their high conviction rates (pp. 48-49).

      Though prosecutors' incentives to plea bargain were clear, their powers to plea bargain were not. Before pleading guilty, most defendants demanded a quid pro quo--an express or at least implicit promise of leniency in return. In most cases, prosecutors could not assure defendants that judges would reward pleas with lower sentences. Judges set sentences within broad sentencing ranges, and prosecutors lacked the power to bind judges' hands. So, without judicial cooperation, prosecutors were powerless (pp. 24-25, 49-51). In the early nineteenth century, judges did not share prosecutors' incentives to plea bargain. As full-time, well-paid officials, they lacked prosecutors' incentives to save time for lucrative private practice. Also, unlike prosecutors, judges did not see convictions as statistics in their win-loss ratios. And, as a matter of principle and pride, they were reluctant to surrender their sentencing power to prosecutorial bargaining (pp. 52-58).

      Prosecutors could bargain, therefore, only in two exceptional areas where they could unilaterally control sentences. First, the Massachusetts liquor laws carried fines that were fixed or spanned a narrow range. Prosecutors could nolle prosequi (dismiss) counts of an indictment unilaterally and set the costs defendants had to pay upon conviction. Clever prosecutors would charge each violator with four liquor-law counts and nolle three counts in exchange for a guilty plea to the fourth. By dropping charges that carried heavy fixed penalties and setting costs lower, prosecutors could guarantee lower sentences for plea bargains and threaten heavier sentences after trial (pp. 21-30). Second, prosecutors had similar power in murder cases, because murder carried a mandatory death penalty. Prosecutors could nolle the indictment's allegation of malice aforethought and reduce the charge to manslaughter, which was punishable by zero to twenty years' imprisonment. Once again, determinate penalties made charge bargaining possible and reliable (pp. 33-35).

      Here Fisher's prosecutorial eye sees what others have overlooked. Theodore Ferdinand, for example, has noticed the concentration of pleas and charge bargains in Massachusetts liquor-law cases. Ferdinand theorized (1) that constables invented plea bargaining while negotiating with criminals for information, (2) that tavern-keepers were savvy enough to seek bargains, and (3) that there were no victims to oppose bargains involving victimless crimes. (4) Though his speculation sounds plausible, it rests on no hard facts (pp. 58-61). Fisher, in contrast, sees that the pattern of overcharging and nolles resembles the way prosecutors overcharge...