Using Conventional Plea Bargaining to Increase
the Number of Criminal Prosecutions
for International Crimes
Plea bargaining is now a pervasive feature of Anglo-American criminal justice systems, but this was not always the case. Indeed, before the nineteenth century, guilty pleas were virtually unknown in British and American criminal proceedings. Early British trials in particular, were short, summary proceedings; consequently, prosecutors had little incentive to induce defendants to waive their right to a trial. The introduction of a series of adversarial features—most notably complex evidentiary rules and the use of defense counsel—transformed the theretofore summary jury proceedings into more time-consuming, complex events dominated by professional advocates. Because this transformation significantly lengthened the time necessary to conduct a trial, an alternative procedure—the guilty plea—gained popularity as a means of disposing of cases more expeditiously.745 To encourage defendants to plead guilty, prosecutors offered defendants some form of sentencing concession in exchange for the defendants’ guilty pleas. As noted in the Introduction, guilty pleas procured by plea bargaining have, since then, become the most prevalent means of disposing of American criminal cases.
In addition to its prevalence, plea bargaining has also become one of the most disreputable features of the American criminal justice system, and a summary description of some of the abuses to which the practice gives rise quickly reveals why.746 American prosecutors frequently rely on charge bargaining of the sort that distorts the historical record of proceedings. Some prosecutors, for instance, systematically overcharge defendants so as to be able to withdraw charges during the bargaining process. Albert Alschuler, a leading critic of plea bargaining,