The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860

By Vogel, Mary E. | Law & Society Review, January 1, 1999 | Go to article overview

The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860


Vogel, Mary E., Law & Society Review


One striking feature of American courts is the widespread practice of plea bargaining. Paradoxically, the practice rewards precisely those who appear guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American republic. Amid social conflict wrought by industrialization, immigration, and urbanization during the Age of Jackson, politicians acutely realized the potential for revolution in Europe. Local political institutions being spare and fragmentary, the courts stepped forward as agents of the state to promote social order necessary for healthy market functioning, personal security, and economic growth. Plea bargaining arose during the 1830s and 1840s as part of a process of political stabilization and an effort to legitimate institutions of self-rule-accomplishments that were vital to Whig efforts to reconsolidate the political power of Boston's social and economic elite. To this end, the tradition of episodic leniency from British common law was recrafted into a new cultural form-plea bargaining-that drew conflicts into courts while maintaining elite discretion over sentencing policy.

In a society where it is said that "law is what the courts do," one notable feature of American justice is the practice of plea bargaining. As we think about the origins of law and social ordering, too often we downplay human agency and choose instead to highlight the nation-state and powers of coercion (Arendt 1958; Meyer & Hannan 1979; Abrams 1982; Soysal 1994). State action from the top down has eclipsed the ways that the initiatives of civil society and social movements have shaped the state from the bottom up.l Only recently have stories of local voluntarism and contestation, along with their effects on state formation, been more widely told (Sewell 1980; Skocpol 1992; Somers 1996). This study examines one pathbreaking local transformation in the American courts-the rise of plea bargaining-that profoundly changed the nature of criminal justice. In exploring plea bargaining, I examine causal forces and dynamics of varied temporal rhythms and highlight the transformative power of events at crucial moments in history (Sewell 1996; Gramsci 1971). Focusing on social transformation, I present a layered dynamic account of how plea bargaining came into being. Theoretically, the account enriches our understanding of the relative institutional autonomy of the courts. By focusing on change as a complement to the social reproduction emphasized by the new institutionalism, it also deepens our knowledge about how institutions and culture adapt to contestation and disruptive events as part of a process of constitutive social change (Vogel 1988).

Though highly controversial, the origins of plea bargaining are surprisingly obscure. While often thought to be either an innovation or a corruption of the courts after World War II, it has much deeper historical roots.2 Understanding these beginnings lends insight into the problems the practice presents today. My purpose here is to explain why plea bargaining arose when and where it did and why it took the cultural form that it did. This study shows that the social forces that produced plea bargaining are very different from those to which it is usually attributed. The significance of plea bargaining lies in the fact that, by the late l9th century, most cases in the criminal courts were being resolved through this process. Although the popular image is one of jury trials with a presumption of innocence, a very different process has anchored the American courts.

To explain the rise of plea bargaining, I explore its beginnings in antebellum Boston-the first sustained instance of the practice known to exist.3 Boston was a national center of legal innovation from which many legal ideas and practices spread to other cities through diffusion (Novak 1996). Plea bargaining very probably was one such distributed legal innovation.

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