Plea Bargaining's Triumph
Fisher, George, The Yale Law Journal
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. …