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

AuthorMnookin, Jennifer L.
PositionBook Review

PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA. By George Fisher. Stanford, CA: Stanford University Press, 2003.

INTRODUCTION I. PLEA BARGAINING'S TRIUMPH II. THE LIMITS OF FISHER'S APPROACH III. APPLYING FISHER'S INSIGHTS IN A POST-BLAKELY, POST-BOOKER WORLD INTRODUCTION

The reality of modern-day criminal trials is that they are almost as rare as the spotted owl. While the idea of the adversarial trial, and in particular the idea of trial by jury, remains an iconic aspect of the American legal system, the sheer fact is that criminal jury trials, if not truly on the endangered species list, are nonetheless becoming ever less common with each passing year. In theory, trial by jury remains a cornerstone of our system of justice: fans of the jury system emphasize its capacity to check the tyranny of the state, the legitimacy that comes from a popular restraint on the administration of punishment, and of course the Tocquevillian notion that "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well." (1) And, to be sure, the public continues to hear a great deal about criminal trials, or, more precisely, about a relatively small handful of sordid and sensational ones. With Court TV's gavel-to-gavel coverage and the enormous press attention devoted to a handful of high-profile (and of course highly atypical) criminal cases like that of O.J. Simpson or, most recently, Scott Peterson, the criminal trial has itself become a form of infotainment. These media spectacles, however, while perhaps helping the criminal jury trial to retain a powerful hold over our shared cultural imagination, bear almost no practical relation to the actual criminal processes faced by most of those accused of a crime.

In actual practice, the vast majority of criminal defendants waive their right to a trial and instead agree to a plea bargain. The proportion of criminal cases dispensed with through plea agreements is staggering. As Robert Scott and Bill Stuntz wrote some years ago, plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (2) Nor is this rhetorical grandstanding; statistics bear out such a stark pronouncement. In 2002, for example, if we look at adjudicated federal criminal cases, 3463 federal criminal defendants went to trial, while 72,110 entered pleas of guilty or nolo contendere--meaning that less than 5% of federal criminal defendants went to trial. (3) Of the 95.4% of those that chose a plea, the vast majority were no doubt the result of plea bargains--negotiated agreements with the prosecutor about charge and punishment in which the defendant agreed to plead guilty in exchange for a reduction in punishment. Plea bargains have become the norm and the trial an anomaly.

In Plea Bargaining's Triumph: A History of Plea Bargaining in America, George Fisher offers an impressively researched and fascinating account of how plea bargaining was transformed over the course of the nineteenth century from a "tiny beachhead" of little general importance to "the dominant force in criminal procedure" (p. 230). Over the course of the century, plea bargaining came to be in the interest of prosecutors and judges alike, and once the principal institutional players shared an interest in facilitating deals, plea bargains quickly became both prevalent and entrenched. At the most basic level, Fisher's argument is that when parties have both the incentive and power to bargain, they will, almost inevitably, bargain.

At some risk of oversimplification, four central claims can be drawn from Fisher's rich and careful narrative. First, Fisher's historical investigations show that prosecutors will tend to bargain whenever they have the power to do so. Plea bargains, Fisher maintains, are "an almost primordial instinct of the prosecutorial soul" (p. 23). They provide a guaranteed conviction for the prosecutor, thereby enhancing his "win" rate, and they are far less time-consuming and resource-intensive than a trial. In the early nineteenth century, prosecutors often combined their responsibilities with other forms of lawyering, and for such part-time prosecutors, quick guilty pleas provided more time for the rest of their (paying) clientele. Even for full-time prosecutors, caseload pressures--or even just a taste for leisure or a preference for anything apart from work--made guilty pleas a satisfying alternative to trial, so long as the defendant could be persuaded to accept terms that still provided adequate punishment from the prosecutorial perspective.

Second, Fisher emphasizes that to create incentives for defendants to plead guilty, prosecutors must have the power to offer a carrot, a stick, or both. They need to be able credibly to establish that a plea will result in a better outcome for the defendant than he could realistically expect from going to trial. The prosecutor must therefore have a relatively high degree of control over, or at least clear knowledge of, the likely sentence that would result from trial. Until judges became willing partners in plea bargaining in the last quarter of the nineteenth century, indeterminate sentencing schemes or substantial judicial discretion severely limited a prosecutor's plea bargaining power. The greater a judge's sentencing discretion, the more uncertainty about what punishment would actually result from conviction; this greater uncertainty made it difficult to "price" a conviction with any confidence. Thus bargains flourished only in limited nooks and crannies of the system, until judges' civil caseload pressures shifted their attitudes about the merits of negotiated pleas.

The third central argument is that once bargains took hold within our criminal justice system, only those institutions and devices that proved compatible with plea bargaining have survived and flourished; Fisher provides examples such as probation and the public defender. Even those procedural devices that might have conceivably limited or slowed the advance of plea bargaining--the bench trial or the rule of evidence restricting the use of prior convictions to impeach a testifying criminal defendant--developed in ways that in fact stanched its advance only slightly, if at all.

Finally, though plea bargaining is sufficiently well entrenched at this point as to be practically unstoppable, this does not mean that all approaches to plea bargaining are created equal. In the final chapter of the book, Fisher's generally descriptive history takes a more normative turn, and he suggests that plea bargaining will be fairest to defendants when there is an appropriate "balance of power" between judge and prosecutor, so that each may operate as a check on unreasonably severe sentences even for those defendants who plead. The Federal Sentencing Guidelines, in Fisher's view, have shifted this balance of power too decisively to prosecutors as opposed to judges, and this new equilibrium may have contributed to pushing the rate of plea bargains still higher in recent years.

As this thumbnail sketch of the book's central arguments suggests, Fisher's explanations focus on the institutional dynamics that made plea bargaining an increasingly attractive alternative for all of the principal players in the criminal justice system--primarily prosecutors and judges, but also defense counsel and even defendants themselves. (4) He looks to explain the rise of plea bargaining through mechanisms internal to the criminal justice system, emphasizing conditions such as caseload pressures, evidence rules, and the structure of sentencing rather than any broader social forces or cultural dynamics. And for the most part, Fisher assumes that all parties within the criminal justice system are rational actors, making reasonable and reasoned choices from whatever institutional perspective they occupy. This internalist and incentive-oriented approach is, for the most part, strikingly effective, adding up to a highly focused and extremely plausible account of plea bargaining's increasing importance. But the book's strengths turn out also to be its weaknesses, for Fisher sometimes pushes both the rational-actor approach and the internalist explanations to the exclusion of alternatives.

Overall, however, Fisher's story is both compelling and important, and especially so fight now. It is, in fact, a particularly salient moment in which to ponder the lessons of the history of plea bargaining: last Term, in Blakely v. Washington, (5) the Supreme Court ruled a portion of Washington State's sentencing scheme unconstitutional, throwing into doubt the status of the Federal Sentencing Guidelines as well as many similar state approaches. And after expedited review this Term, the Court indeed ruled portions of the Federal Sentencing Guidelines unconstitutional in United States v. Booker. (6)

The concern animating both Blakely and Booker was whether, in some circumstances, judicial factfinding may violate a defendant's Sixth Amendment right to trial by jury. The majority in both cases found it to be unconstitutional for a judge to be bound by sentencing provisions that require an increased sentence as a result of facts found by the judge but not proven to a jury beyond a reasonable doubt. (7) The majority coalition that fashioned a remedy in Booker--a different group of Justices than the majority in the case who found mandatory sentencing enhancements under the Guidelines unconstitutional--severed from the Guidelines the provision that made the application of the scheme binding upon judges. Essentially, the Court transformed a mandatory sentencing system into a discretionary one; though judges must still consider the Guidelines when determining sentences, they are no longer obliged to follow them. Whether returning to a more discretionary system is either desirable or constitutionally required is quite contestable; indeed, in...

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