Abstract

This article examines plea bargaining under the common law in England and the United

States, with brief references to Canada, Australia, and New Zealand. The work reveals plea

bargaining to operate in toxic combination with recent, mostly mandatory, sentencing

practices to contribute to the rise of mass incarceration in a fundamental misreading of the

common law. It first considers the current nature, frequency, and patterns of variation of

Anglo-American plea bargaining, noting that both U.S. and English criminal justice systems

employ distinct kinds of agreements that are similar to negotiated guilty pleas and that civil

forfeiture agreements are sometimes components of negotiated resolutions. The article

proceeds by examining some of the major criticisms against plea bargaining as well as

constitutional controversies (particularly in the U.S. context) that bargaining raises. It

analyzes the constitutionality of plea bargaining, its relation to human rights, and some of the

presumptions of the high courts about the practice. By probing competing accounts of the

causes of plea bargaining, this work enables us to see how this controversial practice arose—

something little understood until now. The article concludes by analyzing the consequences

of plea bargaining for the nature of “justice” meted out, focusing on four outcomes-- false

convictions, wrongful acquittals/dismissals, equity in sentencing, and administrative

efficiency – and arrives at startling findings that challenge some of the key presumptions of

the high courts.

Keywords

plea bargaining, criminal justice systems, negotiated guilty pleas, civil forfeiture agreements,

constitutionality, human rights, false convictions, wrongful acquittals/dismissals, equity in

sentencing, administrative efficiency

Plea Bargaining under the Common Law

Mary Vogel

I. Introduction

Among the most paradoxical features of Anglo-American criminal law is the practice of plea

bargaining. Our popular image of justice under the common law is that of a jury trial. Yet, in

actual fact, a very different process produces most convictions—plea bargaining, a practice

whereby a defendant enters a plea of guilty in anticipation of leniency from a prosecutor or

judge.1 This tendency to reward those claiming to be guilty, and who thus are undeserving,

aroused much early controversy. Debate now centers on the fairness and voluntariness of the

practice, and the quality of “justice” done. Yet despite the intense disagreement that plea

bargaining evokes—even in the United States, where it flourishes—an astonishing amount

remains unknown, including much about its origins, causes, consequences, and dynamics.2

1 Thus defined, it does not require that each individual defendant receive a benefit as a result of her

or his plea. It is only necessary that those pleading guilty be accorded leniency with sufficient

regularity to inspire hope of it on the part of any given defendant. The question of how much of a

discount is won, or conversely the penalty for going to trial, still remains. See Candace McCoy,

Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform, 50 Crim. L.Q. 67

(2005). The “bargain” may be explicit or tacit. The question of how to determine the extent of a

discount in the latter case where customary norms are silently at work and terms are unstated has

led many studies to understate the frequency of the practice.

2 For significant overviews the then-extant literature on plea bargaining, see Malcolm Feeley,

Perspectives on Plea Bargaining, 13 L. & Soc’y Rev. 199 (1979); Bruce P. Smith, Plea

Bargaining and the Eclipse of the Jury, 1 Ann. Rev. L. & Social Sci. 131 (2005). One of the

One sign of this is that support for bargaining is often based on rationales that are challenged

by empirical evidence. Uncertainty has made it hard to determine whether plea bargaining

should be welcomed, reformed, or even eliminated if one knew how to do so.3 Mass

incarceration and widespread cynicism about criminal justice also suggest something gone

awry. That they have grown with plea bargaining leads us to ask what part the practice with

its high convicition rates has played. Nearly all agree that the nature, logic, and

consequences of this controversial practice need to be clarified. If, as Holmes suggested, “law

is what the courts do,” it is crucial indeed that we do so. This chapter argues that something is

indeed amiss and that plea bargaining has contributed significantly to it. It is, I suggest, part

of a fundamental misreading of the common law in modernity – one whose significance has

been amplified by mandatory and other harsh sentencing practices.4 Nonetheless, we see how

biggest problems has been how to operationalize bargaining practice in order to study it. A

methodological approach for operationalizing and analyzing patterns of bargaining is presented in

Mary E. Vogel, Coercion to Compromise: Plea Bargaining, the Courts and the Making of Political

Authority (2007).

3 Michael Gorr, The Morality of Plea Bargaining, 26 Social Theory & Practice 129 (2000).

4 Mandatory sentencing on a widespread basiswas introduced in the United States with the Sentencing

Reform Act of 1984. Recently, the National Academy Report, The Growth of Incarceration in the

United States (2014) points to such practice as a contributor to the rise of mass incarceration in

America. In England, mandatory minimums were introduced in 1997. Mandatory minimum

sentenceswere imposed, according to Andrew Ashworth in the Oxford Handbook of Criminology

(2014) in three areas: class A drug trafficking, a third domestic burglary conviction, and possession of

a projibited firearm. Of these, Ashworth argues, the third has had greatest impact. There were then

two minimums set: Criminal Justice Act of 2003 set principles for sentencing in murder cases

(controversial from the start) and Ministry of Justice in 2009 added a minimum of 25 years for murder

with a knife carred to the scene. The Criminal Justice Act of 2003 also established the principle of

bargaining generates a quasi-legal normativity in the courts that shapes the participants, raises

important issues of coercion, creates recurring images of unfairness that erode legitimacy,

and do not obviously ease crowding – indeed may exascerbate it. Since mandatory and other

harsh penalties grew prominent in the 1980s, 1990s and, in England, 2003, we find a toxic

blend that has contributed significantly to rising rates of imprisonment – in a carceral turn

that fundamentally violates a pre-emptive rather than punitive logic of the common law. Yet,

like most stabilizing practices, it offers something for everyone on a daily basis.

This work aims to do several things. It focuses primarily on plea bargaining in the United

States and England with brief comparisons to Canada, Australia, and New Zealand, although

plea bargaining operates in some form in most of the countries of the British Commonwealth

such as India, Pakistan, and South Africa as well as, more recently, Civil Law countries such

“reserve[ing] prison … for the most serious offences” – an aim affirmed by the Sentencing Guidelines

Council’s Overarching Principles – Seriousness 2004. Yet, concomitantly, Ashworth shows that the

treatment of recidivists changes from “progressive loss of mitigation” over the first few offences to

one of envisioning each prior offence as an aggravating factor if relevance and timing make that

reasonable. Thus, as Julian Roberts notes in Punishing Persistent Offenders (2008), sec. 143(2)

ushers in a premium for repeat offenders similar to US mandatory sentencing guidelines. Guilty pleas

appear to boost conviction rates even as they reduce slightly the share of custodial sentences from

69% to 55% per Ministry of Justice, Sentencing Statistics: England and Wales 2009 (2010) and

reducing average sentence length from 47 to 22 months per Ministry of Justice, Criminal Statistics:

England and Wales (2010) -- though in uncontrolled comparisons. Ashworth argues that

“dangerousness” provisions, imprisonment for public protection, release policies, and escalating

response to prior convictions and to breaches of court orders have, however, played a major part in

growing severity and carceral expansion. From 1995 to 2009, English prison population grew,

according to the Ministry of Justice, Sentencing Statistics: England and Wales 2009 (2010) by 32,500

inmates or 66%. Nothing here should be taken to downplay the fact that public opinion, political

dynamics and media publicity also played a large part.

as France, German and Poland. In what follows, we explore, first, the nature, frequency and

patterns of variation of Anglo-American plea bargaining today. The next section examines

key goals of criminal justice and controversies about plea bargaining’s ability to foster them.

The controversies point to outcomes this work explores empirically. Constitutionality,

particularly in the U.S. context) asks if plea bargaining is consistent with autonomy, fairness

and efficiency. Next, we problematize competing accounts of how plea bargaining developed

by delving into its causes. We will see that reasons it began have faded with time and been

supplanted by arrangements with different dynamics. Finally, we analyze the consequences

of today’s transmogrified plea bargaining for the nature of “justice” meted out.

II. Pervasiveness and Patterns of Variation

1. American Plea Bargaining

Across the countries of the common law, plea bargaining has emerged as the dominant mode

of disposing of criminal cases. Plea bargaining has had a checkered history in the United

States. It existed there as early as the 1830s and 1840s, although it was not formally

acknowledged by the American courts until later in the century.5 Once established in the

United States, plea bargaining met with a mixed reception. Initially, it spread to encompass

5 See Vogel, supra note 2; Mary E. Vogel, The Social Origins of Plea Bargaining: Conflict and the

Law in the Emergence of Plea Bargaining, 1830–1860, 33 L. & Soc’y Rev. 161 (1999);

Mike McConville & Chester L. Mirsky, Jury Trials and Plea Bargaining: A True History (2005);

Lawrence M. Friedman, Crime and Punishment in American History (1993). One heavily contested

account suggests a slightly earlier start to American plea bargaining in Essex County,

Massachusetts, in the late 1700s. George Fisher, Plea Bargaining’s Triumph (2003). See discussion

of Fisher’s argument infra Section V.2.

the majority of convictions in Boston’s Municipal Court and, by 1845 it appeared in New

York’s mid-tier courts and in Essex County, Massachusetts.6 By the early 1900s, we see

reform commissions in New York expressing explicit concern about the practice.7 The few

court cases that addressed the guilty plea and its negotiation during the late nineteenth

century tended mainly to challenge it.8 While initially a practice in which, at least in U.S.

courts, judges played a key role, plea bargaining ultimately became one in which prosecutors

played a leading part.9 Other common law countries vary in that regard. After a period of

increased respectability during the mid-1900s, the late 1960s and early 1970s saw a renewal

of earlier opposition to bargained pleas.10 Criticism peaked in America in 1973 with a

proposal from the National Advisory Commission on Criminal Justice Standards and Goals

that plea bargaining be abolished by 1978—one not adopted because it was unclear both how

to accomplish it and what its results would be.

6 McConville & Mirsky, supra note 4; Fisher, supra note 4.

7 N.Y. State Crime Commission, Report to the Commission of the Sub-Committee on Statistics

(1927).

8 See, e.g., Commonwealth v. Battis, 1 Mass. 94 (1804); Edwards v. People, 39 Mich. 760 (1878);

People v. Lepper, 51 Mich. 196, 16 N.W. 377 (1883); Saunders v. State, 10 Tex. Crim. 336 (1881);

Meyers v. State, 115 Ind. 554, 18 N.E. 42 (1888); Mounts v. Commonwealth, 89 Ky. 274, 12 S.W.

311 (1889); Cornelison v. Commonwealth, 84 Ky. 583, 2 S.W. 235 (1886); Wolfe v. State, 102

Ark. 295, 144 S.W. 208 (1912); Pope v. State, 56 Fla. 81, 47 So. 487 (1908); and People v.

Bonheim, 307 Ill. 316, 138 N.E. 627 (1923).

9 Fisher, supra note 4.

10 A. Davis, Sentences for Sale: A New Look at Plea Bargaining in England and America, 1971

Crim. L. Rev. 150, 218.

In the United States, by the 1920s bargained guilty pleas were the most frequent route to

case disposition for felonies.11 The practice grew steadily in subsequent decades.12 Today,

plea bargaining is estimated to account for the disposition of 90 percent or more of all

criminal cases.13

Guilty plea rates vary by type of offense. The more serious the charge, the less likely,

generally, a defendant is to plead guilty.14 Trial rates are lower for drug offenses and

burglaries, for example, than for rape and murder—although for every type of crime a

11 Albert W. Alschuler, Plea Bargaining and Its History, 13 L. & Soc’y Rev. 211, 215 (1979).

12 . For earlier estimates, see, e.g., Brady v. United States, 397 U.S. 742, 752 n.10 (1970); Harry

Kalven & Hans Zeisel, The American Jury (1966) (guilty plea rates ranging from 89 percent for

auto theft to 34 percent for murder); Donald J. Newman, Conviction: The Determination of Guilt

or Innocence Without Trial 3 (1966) (estimating in 1966 that “roughly 90% of all [American]

criminal convictions . . . [were] by pleas of guilty”); Herbert S. Miller, Plea Bargaining in the

United States (1978) (estimating slightly lower figure); Abraham S. Blumberg, Criminal Justice

(1976); Arthur Rossett and Donald Cressey, Justice by Consent: Plea Bargaining in the American

Courthouse (1976); and Mona Lynch, Hard Bargains (2016).

13 See Mark Motivans, Bureau of Justice Statistics, DOJ, NCJ 248470, Federal Justice Statistics

2012—Statistical Tables 17 tbl.4.2 (2015). In U.S. federal courts in 2007–2011, guilty plea rates

increased from 95.8 to 96.9 percent of all convictions; the percentage of convictions following trial

declined from 4.2 to 3.1 percent. U.S. Sentencing Commission, 2011 Sourcebook of Federal

Sentencing Statistics fig.C, https://perma.cc/V8K2-AA86. For data on U.S. state courts, see Brian

A. Reaves, Bureau of Justice Statistics, DOJ, NCJ 243777, Defendants in Large Urban Counties,

2009—Statistical Tables 22, 24 tbl.21 (2013) (in state courts in the seventy-five largest counties,

reporting guilty plea rates for major crimes and summarizing: “nearly all convictions were the

result of a guilty plea rather than a trial”).

14 James E. Bond, Plea Bargaining and Guilty Pleas (1975).

majority of convictions are achieved by guilty pleas rather than trial. Overall, guilty pleas

accounted for 97.4 percent of all federal criminal convictions in 2012. The acquittal rate in

felony trials in federal courts the same year was a mere 0.5 percent; the rate of dismissals was

only slightly higher at 6.2 percent.15

All the foregoing American research infers plea bargaining’s frequency primarily from

guilty pleas. But a few studies have examined the process of negotiation directly. In the

1960s, Vetri interviewed 205 prosecutors and found wide variation: 13.6 percent of offices

never bargained, while 5 percent bargained in nine out of ten cases. Nearly a third indicated

they bargained—more or less explicitly—a majority of their guilty pleas.16 But studying

explicit bargaining underestimates its frequency because it overlooks tacitly anticipated

leniency—known as “implicit bargaining.” When explicit negotiations decrease, implicit

forms may compensate. It is also not uncommon in some jurisdictions, notably U.S. federal

courts, for the defense and prosecution to negotiate before charges are filed, and about which

charges will be filed—a practice that can be hard to document or study.17 “Charge

bargaining” is explicitly permitted after initial charges are filed as well. Negotiation over this

discretionary decision is possible (and tempting) because prosecutors often have the option to

pursue a case under several different statutes—each carrying very different penalties.18

15 See Motivans, supra note 12; Reaves, supra note 12.

16 Dominick R. Vetri, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas,

112 U. Pa. L. Rev. 864, 897–99 (1964).

17 See G. Nicholas Herman, Plea Bargaining 131–35 (2012).

18 See Irby v. United States, 390 F. 2nd 423, 429 (D.C. Cir. 1976) (Bazelon J., dissenting) (“[O]ften

it takes nothing more than a fertile imagination to spin several crimes out of a single transaction.”);

Herman, supra note 16, at 129.

With judicial acceptance of plea bargaining in the United States has come somewhat

greater regulation. When negotiated in federal court, bargains must accord with Rule 11 of

the Federal Rules of Criminal Procedure, which provides that the prosecution and defense

“may discuss and reach a plea agreement” pursuant to which the prosecution will:

(a) not bring, or will move to dismiss, other charges; (b) recommend a

particular sentence or sentencing range is appropriate . . .; or (c) agree that a

specific sentence or sentencing range is the appropriate disposition of the case,

or that a particular provision of the Sentencing Guidelines . . . does or does not

apply.19

Note that the second kind of agreement may have no precise analog in many other common

law countries, where tradition prohibits prosecutors from arguing for a specific sentence (as

opposed to summing up for the court the law and facts relevant to a defendant’s sentence).

An agreement on the federal prosecutor’s sentencing recommendation does not bind the

judge, but an agreement on a specific sentence or range is binding once the judge accepts the

plea agreement. Among the most common bases for judges to reduce federal sentences below

the recommended guideline range is a prosecutor’s confirmation that the defendant provided

“substantial assistance” to law enforcement, typically by providing information against other

defendants, so that topic is likely to be a one of active negotiation.20 Plea agreements,

federally, must be in writing and can be accepted or rejected by the court, but judges are

19 Fed. R. Crim. Pro. 11(c). The U.S. Supreme Court in United States v. Booker, 543 U.S. 220

(2005), struck down the mandatory nature of the federal sentencing guidelines—previously in

effect since 1987—converting them into advisory, but still influential, guidelines. Post-Booker,

district courts still must take the guidelines into account but have greater authority to depart from

the narrow sentencing ranges recommended by the guidelines.

20 See U.S. Sentencing Guidelines Manual §§ 5K1.1 & 5K3.1; Herman, supra note 16, at 131–36.

prohibited from participating in those plea discussions.21 Nonetheless, Rule 11 increased

judicial scrutiny of plea agreements; rules in many states now authorize some judicial

involvement in bargaining, at least to give English-style sentence indications or provide an

advance notice of whether an agreement would likely be approved.22 Pleas bargained in state

courts are often less formal and well-documented. For all guilty pleas, the judges “address the

defendant personally” to assure a guilty plea’s voluntariness and “determine that there is a

factual basis for the plea.”23

Of great interest is recent use of deferred prosecution and deferred conviction

agreements wherein a guilty plea is entered into but not acted on by the court in terms of

conviction or sentencing, respectively, while the defendant works to provide sufficient

information or assistance – perhaps a quota of resulting convicitons – to cause the case to be

temporarily or permanently set aside or closed with substantial leniency.24 These revert to an

old common law logic not to prosecute but instead to threaten prosecution to elicit

remediation of behavior that might cause prosecution to be foregone.

21 Fed. R. Crim. Pro. 11(c). But see William McDonald, Plea Bargaining (U.S. Gov’t Printing

Office: 1985) (reporting that whether written agreements were signed varied widely across U.S.

localities).

22 See Nancy J. King & Ronald F. Wright, The Invisible Revolution in Plea Bargaining: Managerial.

Judging and Judicial Participation in Negotiations, 95 Tex. L. Rev. 325 (2016) (study of state

judges’ roles in plea bargaining); Samuel Walker, Taming the System: The Control of Discretion in

Criminal Justice, 1950–1990, at 106 (1993).

23 Fed. R. Crim. Pro. 11(b); see also Walker, supra note 21, at 105–06 (1993) (discussing Rule 11

and noting U.S. judges reject only 2 percent of proffered guilty pleas); Herman, supra note 16, at

1–4 & 100–10 (describing components of plea bargains).

24 Colin King and Nick Lord, Negotiated Justice and Corporate Crime: The Legitimacy of Civil

Recovery Orders and Deferred Prosecution Agreements (2018).

Finally, we should note that both U.S. and English criminal justice systems employ

distinct kinds of agreements closely analogous to negotiated guilty pleas. Immunity

agreements provide potential defendants with an assurance of non-prosecution in exchange

for especially valuable assistance to law enforcement through testimony (“Queen’s evidence”

in the UK), information disclosures, or other means.25 And both countries now employ non-

prosecution agreements (often in corporate crime cases), pursuant to which defendants,

without acknowledging guilt, agree to certain terms—civil fine or restitution payments,

ongoing reporting requirements, regulatory compliance, internal corporate reforms, etc.—in

exchange for an assurance of non-prosecution.26 Additionally, in both countries civil

forfeiture agreements are sometimes components of negotiated resolutions, especially in drug

trafficking or organized-crime cases.27

2. Plea Bargaining in England and Wales

In England, by contrast, less is known, and the earliest years of plea bargaining are still being

explored. England and Wales embrace an adversarial approach anchored in principles based

on the relation of citizens to the state. That vision is anchored in the jury as an independent

25 See Serious Organised Crime and Police Act 2005 ss 71–73 (U.K.); 18 U.S.C. §§ 6002–6003

(2016).

26 See Brandon L. Garrett, International Corporate Prosecutions, in this volume (describing

deferred- and non-prosecution agreements with corporate defendants in the United States and UK).

See U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9–27.220 (prosecutors may decline to file

criminal charges when effective non-criminal options exist).

27 See Herman, supra note 16, at 194–95. On prosecution policy, see U.S. Attorneys’ Manual §§ 9–

113.100 to -113.106; Crown Prosecution Service, Proceeds of Crime—Legal Guidance (2018)

(Engl. & Wales).

“tribunal of fact”.28 To guard against excesses of state power, a defendant is presumed

innocent, evidence must be admissible and guilt must be demonstrated beyond a reasonable

doubt. To acquit,innocence of the defendant need not be proven; the State must only fail to

make its case. It is an approach wary of the resources of the State.29 These constraints on the

state aim to assure that the innocent are not wrongly convicted. From time to time, a guilty

person may be wrongly acquitted but that is the price of due process. In this context, a guilty

plea must be fully voluntary without undue pressure or coercion. Yet, life often unfolds quite

differently in practice than in principle. England, like the United States, has given rise to plea

bargaining. Yet, the practice has long been said not to occur.

As recently as the 1990s, the very existence of “plea bargaining” was explicitly denied,

particularly by Downing Street. Due largely to official denials, the historical development of

English bargaining is only slowly coming to light.30 Nonetheless, it is clear that “trial

bargaining” has been occurring for some time.31 In that practice, judges were marginalized

while prosecuting and defending barristers took center stage and negotiated informally.

Under the Turner rules, judges were long formally barred even from offering a sentence

indication as to the discount on offer for a guilty plea.32 Sanders and Young suggested that

nevertheless consultations, often by indirection, were more common than many believe.33

This more tacit sentence bargaining coexisted by the 1990s with more explicit, if informal,

28 Mike McConville, “Plea Bargaining” in Mike McConville and Geofrrey Wilson, eds., The

Handbook of Criminal Justice Process 353-377 (2002).

29 McConville, supra, note 26.

30 See Mary E. Vogel, Plea Bargaining and Democratic Politics: Legal Discretion and Elite Power

in the Great Ages of English Reform (forthcoming).

31 John Baldwin & Mike McConville, Negotiated Justice (1977).

32 Turner [1970] 2QB 321.

“cup of tea”-style negotiation between prosecuting and defending barristers and reports of

conversations between defending barrister and judge, even pre-Goodyear. Charge bargains

and “fact” bargains increased as well.

Plea bargaining is now pervasive in English practice and widely acknowledged among

solicitors, barristers, and scholars.34 Most convictions in England are produced by a guilty

plea and, of those, a majority are bargained.35 If still somewhat less widespread than in the

United States, recentappellate decisions, such as Goodyear’s abandonment of the Turner

rules, have opened the way for wider acceptance of the practice. One motivation was the

waste of resources from so-called “crack’d trials”—bargains negotiated on the eve of trial

(perhaps because barristers who argue an English case come onstage only shortly before

trial). As recently as 2004, 22.5 percent of total Crown Court cases were resolved at this late

stage.36

33 Richard Young & Andrew Sanders, Plea Bargaining and the Next Criminal Justice Bill, 144 New

L.J. 1200 (1994) (“In practice, both defence counsel and judges have abused their right to meet in

private . . . by engaging in sentence bargaining on a wide scale.”).

34 Andrew Sanders & Richard Young, Criminal Justice (2010); Danielle Alge, Pressures to Plea

Guilty or Playing the Sytem?: An Exploration of the Causes of Cracked Trials (2008); David

Moxon and Carol Hedderman, “Mode of Trial Decisions and Sentencing Differences Between

Courts” 33 The Howard Journal (1994).

35 In the Crown Courts of England and Wales in 2009–2012, about 73 percent of charged defendants

pled guilty and 91 percent of convictions occurred through guilty pleas. Crown Prosecution

Service, Annual Report and Accounts 2011–12, at 85 tbl.7 (2012), https://perma.cc/GL6GAKCL.

Of the 26.5 percent of charged defendants who did not plead guilty, approximately 13–14 percent

went to trial (where 7–8 percent were convicted); the remainder were dismissed or received a

judicial acquittal. Id.

36 Pleas Please Me, The Economist, Sept. 23, 2004.

English plea bargaining long remained less technically developed than U.S. practice,

especially that in the federal courts, at least partly due to official denials that it occurred.

However, that is changing.37 Finally, in 1991, the Criminal Justice Act officially

recommended leniency for those pleading guilty. In 1994, the Criminal Justice and Public

Order Act affirmed the principle that defendants pleading guilty should generally receive a

lighter sentence than those convicted at trial. This principle was reaffirmed by the Criminal

Justice Act of 2003, which took things a bit farther.38 In 2004, the Sentencing Guidelines

Council issued the first definitive guideline requiring judges to grant a sentence reduction of

up to one-third less than the post-trial sentence when a guilty plea is entered.39 In 2005,

Goodyear completed England’s formal acceptance of plea bargaining by abandoning the

Turner prohibition on judicial sentence indications and authorizing Crown Court judges to

indicate the type (e.g., fine, custody, probation) and magnitude of a sentence on offer should

a guilty plea be entered.40 (Two years earlier, the Criminal Justice Act 2003 authorized an

indication of type and magnitude of sentence in the Magistrate’s Court.) Plea negotiation

received a final boost from the Serious Organised Crime and Police Act of 2005. It extended

the power of the Crown Prosecution Service to secure cooperation of minor criminal figures

37 “The Acceptance of Pleas and the Prosecutor’s Rule in Sentencing Exercise,” Attorney General

Guidance to the Legal Profession. London: Attorney General’s Office (2012).

38 Criminal Justice Act of 2003 s 144(1).

39 For the current guidelines, see Sentencing Council, Reduction in Sentence for a Guilty Plea:

Definitive Guideline 5 (2017) (England & Wales) (“The maximum level of reduction in sentence

for a guilty plea is one-third”); see also the Coroners and Justice Act 2009 s 125(1) (“every court

must . . . follow any sentencing guidelines which are relevant”).

40 R. v. Goodyear [2006] 1 Cr App R (S) 23 (authorizing judges to provide defendants with advance

indication of the sentence to follow a plea; any such indication is discretionary with the judge but

binding if made).

by using strategies that were time honored in England and also authorized under the U.S.

Racketeer Influenced and Corrupt Organizations Act of 1970, which permitted immunity in

exchange for testimony against codefendants.41

Despite long-standing restrictions, the tendency of guilty pleas to elicit leniency in

England has historically been well known by judges, lawyers, and, to some extent, defendants

alike. This helps illuminate the prevalence of guilty pleas in England’s Crown Courts since

the early to mid-1800s,42 and why in recent years more than 70 percent of defendants charged

in Crown Court plead guilty (and the rate is nearly as high in Magistrates’ Courts).43 While

this guilty plea rate is high, it pales alongside U.S. guilty plea rates of approximately 95

percent today. Whether as cause or effect of the lower guilty plea rate is a matter of some

debate, but note that the English acquittal rate of 22 percent in Crown Court contrasts

markedly with the aforementioned much lower American felony acquittal rate.

3. Plea Bargaining in Commonwealth Countries

Plea bargaining in some form is widespread in other common law countries as well, although

many avoid that term.44 Data on rates of plea bargaining are scarce in many places, but it is

clear that a large majority of convictions are achieved through guilty pleas in Canada and

Australia, for example.45 New Zealand criminal justice likewise takes advantage of negotiated

guilty pleas. The practice was folded into a broader procedural framework by 2011

41 18 U.S.C. §§ 1961–1968 (2016).

42 See Vogel, supra note 26 (forthcoming).

43 See CPS, Annual Report, supra note 30, at 86 tbl. 7 (Crown Courts); id. 83 tbl. 3 (67.6–68.4

percent guilty pleas in Magistrates’ Courts in 2009–2012).

44 See generally, Peter Marcus, et al., A Comparative Look at Plea Bargaining in Australia, Canada,

England, New Zealand and the United States, 57 Wm. & Mary L. Rev. 1147 (2016).

legislation, which, among other things, permits judges to facilitate the process through

sentence indications. 46 Practice in these Commonwealth jurisdictions broadly share two

features with the English system that distinguishes them from U.S. jurisdictions. As

previously noted, often prosecutors do not make as adversarial sentencing recommendations

(although it can be a fine line between that practice and speaking to relevant facts and

sentencing law), and so the parties do not negotiate actively over such recommendations.

Judges generally retain greater sentencing discretion than in many U.S. jurisdictions (though

often subject to sentencing guidelines), and, thus, judicial sentencing indications are generally

more important to the plea bargaining process.47

One result of this growth of guilty pleas has been very high conviction rates. Beginning

in the last decades of the 20th century, this surge of convictions contributed, together with the

45 On Canada, see R v. Burlingham [1995] 2 S.C.R. 206, 208 (Can.) (recognizing plea bargaining as

an “integral element of the Canadian criminal process”); Marcus et al., supra note 38, at 1168

(estimating ““a strong majority of criminal prosecutions are resolved by pleas”). In Australia, a

leading High Court decision recognizing plea bargaining is GAS v. The Queen (2004) 217 CLR

198, 210–211. See also Arie Freiberg, Non-adversarial Approaches to Criminal Justice, 17 J.

Judicial Admin. 205, 206–07 (2007) (noting guilty plea rates in various Australian courts of 73–95

percent); For data on guilty pleas and plea bargaining in Victoria, see Asher Flynn & Kate Fitz-

Gibbon, Bargaining with Defensive Homicide: Examining Victoria’s Secretive Plea Bargaining

System Post-law Reform, 35 Melb. U. L. Rev. 905, 912 (2011). On Australia, generally, see Sharon

Roache Anleu and Kathy Mack, “Intersections Between In-Court Procedures and the Production of

Guilty Pleas” 10 Australia and New Zealand Journal of Criminology 1375 (2009).

46 Criminal Procedure Act 2011 (N.Z.).

47 Id. pt. 1, ss 60, 62 (N.Z.); Marcus et al., supra note 38; Arie Freiberg, Australia: Exercising

Discretion in Sentencing Policy and Practice, 22 Fed. Sent. Rptr. 204, 204 (2010) (sentence

indications in Australia).

introduction of a range of harsh sentencing practices, to produce an exploding prison

population.48 Initially touted as bringing greater consistency to sentencing and averting

excessive leniency by some judges, harsh sentencing schemes in England variously

prescribed mandatory minimums, indeterminate imprisonment for public protection,

enhanced sentences for dangerousness, and standardized sentences based on seriousness of a

crime and criminal history with provision for adjustments, among other things. While guilty

pleas produced high conviction rates, these sentencing practices increased length of

sentence.49 In the United States mandatory sentencing, truth in sentencing and “three strikes”

laws had similar effects. These proved a toxic combination. One finds here a major force in

the surging prison population in the United States and England to produce an epidemic of

mass incarceration since the late 1980s.50 Together with tougher drug laws, these practices

help explain why rates of imprisonment failed to decrease once crime began to drop in the

late 1990s. Today crime rates in England are the lowest since 1981 but prison populations

continue high.

III. Critiques of Plea Bargaining

Plea bargaining has been criticized on a number of grounds. The criticisms include: (1)

erosion of adversarialism, (2) unconstitutionality, (3) frequency of false convictions, (4)

sentencing inequities and irrationalities, (5) administrative shortcomings, (6) reduced

deterrence, and (7) diminished rehabilitative capacity. These criticisms have been countered

48 See, supra, note 4.

49 See Ashworth, supra, note 4.

50 National Research Council. 2014. The Growth of Incarceration in the United States: Exploring

the Causes and Consequences. Washington, D.C.: National Academy Press.

https://doi.org/10.17226/18613

by supporters of the practice. While proponents mainly laud plea bargaining for its

efficiencies, critical debate extends beyond expedience.51 It asks what costs and distortions

justice can tolerate.

A first critique argues that bargaining erodes adversarialism by fostering cooperation.

Others counter that an adversarial approach is ill-suited to produce impartial decisions or

even unbiased portrayal of case facts.52 They argue that bargaining may thus foster a better

model. This challenges the institutional bases of adjudication generally and so is tabled for

now.53

Constitutional challenges contend that bargaining may be coercive and that it may exert

a “chilling effect” on a U.S. defendant’s Fifth and Sixth Amendment rights against self-

incrimination and to a fair trial.54 For the United Kingdom, plea bargains must satisfy the

right to a fair trial under the European Convention on Human Rights.55 Courts have, so far,

accepted views of bargaining’s advocates that a guilty plea is voluntary, informed and, with

assistance by competent counsel, noncoercive. Lately, this claim is bolstered by a view of

51 For a fuller overview of these debates, see Richard L. Lippke, The Ethics of Plea Bargaining

(2011); see also William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow,

117 Harv. L. Rev. 2548 (2004); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J.

1978 (1992); Moise Berger, The Case Against Plea Bargaining, 62 A.B.A. J. 621 (1976).

52 Jerome Frank, “The ‘Fight’ Theory versus the @Truth’ Theory” in Courts on Trial: Myth and

Reality in American Justice (1949).

53 Robert A. Kagan, Adversarial Legalism: The American Way of Law (2003).

54 See, e.g., McCoy, supra note 1.

55 On the ECHR and plea bargaining, see Jenia Iontcheva Turner & Thomas Weigend, Negotiated

Justice, in International Criminal Procedure: Principles and Rules 1376, 1398–99 (Goran Sluiter et

al. eds., 2013), citing Håkansson and Sturesson v. Sweden, App. No. 11855/85, Eur. Ct. H.R., Feb.

21, 1990, para. 66; Kwiatkowska v. Italy, App. No. 52868/99, Eur. Ct. H.R., Nov. 30, 2000, at 5–6.

bargains as contracts, freely made, that remove a defendant, by agreement, from legal

provisions that would usually apply.56

The next three criticisms raise issues of fairness, equity and efficiency. One risk is

unfairness in the form of a false conviction. Here critics ask if offers of leniency and/or

penalties at trial exert such strong influence that defendants may plead guilty even when

innocent or, at least, do so when a trial acquittal is likely. If the largest discounts are offered

in weakest cases, and evidence is usually weakest against the wrongly accused, then innocent

defendants may face greatest pressure to plead. Supporters of bargaining respond that

defendants should be able to address the risk of wrongful trial convictions through

bargaining; one who was falsely accused and then convicted at trial would be sentenced more

severely than one who bargained. Thus, they suggest, potential loss is limited and costs and

stresses of trial are bypassed. Also countering claims of unfairness, supporters of bargaining

argue that plea bargaining reduces the risk that the guilty inadvertently walk free. Critics

counter, however, that where judges and law enforcement perceive injustice, they may

increase dismissals or screen cases for prosecution more closely.

Critics next argue that plea bargaining aggravates sentencing inequities. Legal

philosophers and constitutional or human rights law call for proportionality in sentencing.57

56 On bargaining as contract, see, e.g., Frank H. Easterbrook, Plea Bargaining as Compromise, 101

Yale L.J. 1968 (1992).

57 See, e.g., Andrew Von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the

Principles (2005); Ewing v. California, 538 U.S. 11 (2003) (summarizing the U.S. Supreme

Court’s weak proportionality doctrine under the cruel and unusual punishment clause); R v. Smith,

[1987] 1 S.C.R. 1045 (Canada) (striking down sentence as unconstitutionally disproportionate). For

recent decisions defining ECHR Art. 3 limits on sentencing disproportionality, see Öcalan v.

Turkey, App. No. 24069/03, Eur. Ct. H.R., Mar. 18, 2014; Vinter and Others v. the United

Kingdom [GC], App. No. 66069/09, Eur. Ct H.R., July 9, 2013; Rrapo v. Albania, App. No.

Critics argue that bargaining distorts proportionality by introducing sentencing factors other

than seriousness, boosting prosecutorial power at the expense of the judge,58 and allowing

experienced recidivists to negotiate unduly lenient sentences.59 They query whether

unfettered ability to forfeit trial may yield discriminatory sentencing. Those who favor

bargaining retort that the practice allows individualized sentencing, offsets overly

harshpenalties, and enables rewards to remorseful and cooperating defendants.

Critics further contend plea bargaining has ultimately had little effect on case backlogs.

They also counter that other means, such as the “bench trial” or more intensive “prosecutorial

screening” procedures, can facilitate efficiency in criminal process equally well with much

less undue pressure on defendants.60 Defenders of the practice insist that bargaining alleviates

crowding, speeds cases to disposition, and avoids the costs of trial.

Two final criticisms focus on whether bargaining adversely affects deterrence and

rehabilitation. These last two challenges necessarily raise the question of what criminal

justice goals we prioritize—a question that must be settled before plea bargaining’s effects on

them can be fully estimated. Thus, we reserve these two issues for consideration elsewhere.

58555/10, Eur. Ct. H.R., Sept. 25, 2012.

58 By enhancing prosecutorial discretion, critics argue, bargaining may foster discrimination

since it precludes most avenues of appeal or review.

59 Alge, supra, note 32

60 See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 Stan. L. Rev. 29

(2002); Stephen J. Schulhofer, Is Plea Bargaining Inevitable? 97 Harv. L. Rev. 1037 (1984) (in

Philadelphia, only 25 percent of convictions stem from guilty pleas); see also Donald McIntyre &

David Lippman, Prosecutors and Early Disposition of Felony Cases, 56 A.B.A.J. 1154, 1157

(1970) (80 percent of criminal cases in Baltimore resolved by bench trials); D. Newman

Conviction: The Determination of Guilt or Innocence Without Trial (1966).

Our assessment of the persuasiveness of these critiques turns on an analysis of

bargaining’s consequences. We ask, first, does bargaining breach constitutional guarantees?

Second, does it convict unfairly? Third, does plea bargaining nurture inequity?Fourth, does

plea bargaining improve administrative efficiency? We turn now to probe its basic

constitutionality. Since assessing impacts of the practice is aided by knowing why plea

bargaining occurs, we then examine what is known about bargaining’s causes. Then, we

conclude by exploring bargaining’s consequences for fairness in conviction, equity in

disposition and sentencing, and administrative efficiency.

IV. Constitutionality and Human Rights

During the late twentieth and early twenty-first centuries, the U.S. Supreme Court and the

English Court of Appeals gradually but explicitly approved plea bargaining. Prior to the

1970s, the U.S. Supreme Court avoided general findings on plea bargaining and, instead,

reviewed challenges on a case-by-case basis. During the 1950s and 1960s, the Court showed

tolerance—mainly by sidelining the issue of plea bargaining. However, beginning about

1970, the U.S. Supreme Court decided a series of direct challenges to bargaining’s practices.

It consistently affirmed the constitutionality of the core practices of plea bargains, including

pleading guilty in order to avoid a harsher penalty after a trial conviction.

In 1970 in Parker v. North Carolina, the U.S. Supreme Court authorized a form of trial

penalty when it held that “an otherwise valid plea is not involuntary because [it is] induced by

the defendant’s desire to limit the maximum . . . penalty to less than that authorized if there is

a jury trial.”61 The same year in North Carolina v. Alford,62 the Court similarly held that a

guilty plea for a life sentence when the trial alternative is the death penalty is not

61 397 U.S. 790, 795 (1970), citing Brady v. United States, 397 U.S. 742 (1970).

62 400 U.S. 25 (1970).

unconstitutionally coercive. The justices reasoned that the fact the defendant “would not have

pleaded guilty except for the opportunity to limit the possible penalty [of death] does not . . .

demonstrate that the plea was not a free and rational choice.”63 This decision revealed the

Court’s presumption that the defendant consistently reaps a benefit for pleading guilty in such

a situation and that this does not contravene voluntariness. Also in 1970, in McMann v.

Richardson the Court considered the validity of a plea bargain when induced through

defendant’s mistaken belief that the prosecution could use his allegedly coerced confession as

trial evidence. The Court held that the guilty plea, based on an implicit bargain, was valid if

the defendant had “sufficient awareness of the relevant circumstances and likely

consequences.”64 In these decisions and subsequent ones, the Court cited advantages accruing

to defendants who bargain while acknowledging that “the decision to plead guilty before the

evidence is in frequently involves the making of difficult judgments.”65

In 1971, the U.S. Supreme Court in Santobello v. New York used the term “plea bargain”

for the first time in a majority opinion and affirmed the practice to be legitimate.66 Santobello

held that a bargained guilty plea is invalid if its terms are breached by a prosecutor. Writing

for the majority, Chief Justice Burger embraced plea bargaining: “disposition of charges after

plea discussions is not only an essential part of the [judicial] process but highly desirable.”67

The Court underscored the state’s interest in speedy case disposition, which it presumed plea

bargaining to advance. This presumption periodically would recur.

63 400 U.S. at 31. Alford also held that a court can accept a guilty plea and enter a valid judgment of

conviction even if the defendant merely consents to conviction and does not admit his factual guilt.

64 397 U.S. 759, 766 (1970).

65 397 U.S. at 769.

66 404 U.S. 257, 260 (1971).

67 404 U.S. at 261.

Two decisions in 1978 affirmed the use of so-called trial penalties in plea bargaining. In

Bordenkircher v. Hayes,68 the Court held that the fact a prosecutor adds charges in order to

greatly enhance a post-trial sentence after a defendant refuses to plead guilty does not violate

due process. Justice Stewart asserted that, in the negotiation between prosecution and

defense, both “arguably possess relatively equal bargaining power.” This explicit

presumption of equality of arms, in Stewart’s view, justifies why, as long as the defendant is

free to reject an offer, “there is no . . . element of punishment or retaliation.”69 Corbitt v. New

Jersey involved a challenge to a homicide statute that mandated life in prison for defendants

convicted at trial but authorized a lesser sentence for those who entered a plea of nolo

contendere.70 The Court held that the sentencing distinction did not unconstitutionally burden

the defendant’s decision to go to trial, noting “that not every burden on the exercise of a

constitutional right, and not every pressure or encouragement to waive such a right, is invalid.

Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held

that a State may encourage a guilty plea by offering substantial benefits in return for the plea .

. . [including] a lesser penalty than that required to be imposed after a guilty verdict by a

jury.”71 Jackson is distinguished from Corbitt in that, in Jackson, the death penalty could be

imposed only at trial and so was unconstitutional.72

68 434 U.S. 357 (1978).

69 434 U.S. at 362–63. See also United States v. Goodwin, 457 U.S. 368 (1982) (holding that it was

not unconstitutionally vindictive for a prosecutor to add charges for trial after plea negotiations

broke down).

70 439 U.S. 212 (1978).

71 439 U.S. at 218–20.

72 390 U.S. 570 (1968)

Throughout these decisions, three themes stand out. First, the U.S. Supreme Court

emphasizes a compelling state interest in efficient case resolution and the Court believes that

plea bargaining is critical to that interest. Second, the Court views plea bargaining as a

voluntary and non-coercive practice in which equality of arms exists in the relation between

defendant and the State. Third, the Court conceives of plea bargaining as closely analogous

to private contract negotiations that are voluntarily entered into, which leads it to incorporate

private contract norms into the constitutional law of plea bargaining and to describe plea

bargaining as a market-like process. “[P]lea bargains are essentially contracts,”73 and by

definition are characterized by “mutuality of advantage” and are “mutually beneficial.”74

Judicial regulation for “fairness” might “stifle the market for plea bargains.”75

Finally, against these developments, two recent U.S. Supreme Court decisions have

modestly strengthened defendants’ ability to confront the state in a bargaining-dominated

justice system. Lafler v. Cooper and Missouri v. Frye hold that defendants’ right to

competent legal representation includes the right to be informed by their lawyer of any plea

bargain offers and to receive competent legal advice about the choice between a trial and a

guilty plea.76

73 Puckett v. United States, 556 U.S. 129, 137 (2009). The Court cites treatises on private contract

law to support its constitutional law decisions on plea bargaining. See, e.g., Mabry v. Johnson, 467

U.S. 504, 507–09 (1984) and United States v. Hyde, 520 U.S. 670, 677–78 (1997).

74 Corbitt, 439 U.S. at 222.

75 United States v. Mezzanatto, 513 U.S. 196, 208 (1995). For an extended discussion of private

market and contract themes in this body of law, see Darryl K. Brown, Free Market Criminal

Justice 91–118 (2016).

76 Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).

Given the many presumptions in the Court decisions about how plea bargaining operates,

we should ask how the system works and what are its consequences. We shall see that the

Court’s presumptions, thus far, find little support in the existing research literature.

V. Causes of Plea Bargaining in England and America

Despite the prominence of plea bargaining, much about its causes is still largely unknown.

We consider now existing research on its causes, which was produced by scholars in the

post–World War II years who told a then-astonishing story: the jury trial was disappearing,

replaced by plea bargaining. Earliest sociolegal scholars advanced four competing

explanations for the emergence of plea bargaining.

1. Early Sociolegal Models

Rationality. From the standpoint of a “rational” model of organizations, which includes the

law and economics approach of “bargaining in the shadow of trial,” plea bargaining occurs

because it moves beyond a zero-sum interaction to produce cooperation that cuts cost, time,

and effort to boost efficiency. It suggests parties forecast an expected trial outcome, discount

it by the probability of acquittal, and offer a proportional discount. The problem is that, on

this model, bargaining would always have yielded savings. Yet historically, plea bargaining

has not always existed. Thus efficiency alone cannot explain the practice.

Bureaucracy. A second approach analyzes criminal justice as a bureaucracy. It was

described variously as a “natural” or “functional system” or in terms of institutional

“bounded rationality” or “bureaucratic politics.” For functionalists, adaptive organizations

utilize available incentives and sanctions in ways suited to build collective purpose, produce

behavior needed to achieve their goals, and survive. Despite formalized roles, however,

incentives and sanctions often fail to achieve desired actions because officials are also

motivated to pursue their own agendas. For example, Feeley contends that plea bargaining

signals a dysfunctional trial process. But functional accounts of this type have been contested

by “bounded rationality” and “power politics” theorizing.

For the bounded rationality theorists, members of organizations also receive inducements

(e.g., money, prestige) to work on the group’s behalf. The image here is of loosely coupled

actors operating on imperfect information, planning incrementally and “satisficing” by

developing routines and “rules of thumb” to guide action. Once more, side payments do not

always suffice because members’ own goals (e.g., leisure) may diverge. Models of

“bureaucratic politics” focus on incentives inherent in institutional structures, effectiveness of

coalition formation, and financial inducements from pay structures. These studies include

some work from a conflict perspective. Baldwin and McConville’s landmark study of English

plea bargaining, which queried the incentives posed by lawyers’ agendas, workload, and fee

structure, lies in this tradition.77 These two groups of studies explain more richly than

functionalism the tensions between individuals and the group. As causal arguments, most

bureaucratic models struggle with the fact that historically plea bargaining arose well before

the courts developed into large-scale institutions at the close of the nineteenth century.

However, studies such as Baldwin and McConville’s have much to say about the forces

shaping bargaining’s dynamics.

Complexity. Feeley argues, following Langbein, that growing procedural complexity in

the trial process opened the way for plea negotiations as the trial ultimately collapsed under

its own weight.78 Langbein had earlier argued that complexity made the trial unworkable.79

However, Feeley intermixes arguments about factors causing plea bargaining initially with

77 Baldwin & McConville, supra note 27.

78 Malcolm Feeley, The Process Is the Punishment (1979).

influences that shaped it over time. Feeley initially sought to use increased complexity to

explain the origin of plea bargaining during the late nineteenth century. Yet subsequent

historical studies have shown that plea bargaining had already arisen in Boston and New

York by the 1830s and 1840s—well before the years Feeley targets. During the early to mid-

nineteenth century, trials in America’s lower courts were relatively simple. Procedural

complexity may have reshaped bargaining during the late 1800s or 1900s but it founders as

an account for plea bargaining’s beginnings.

Workgroups. Finally, Eisenstein and Jacob have proposed a workgroup model and argue

that courtroom personnel develop informal norms and procedures for handling caseloads

cooperatively,80 due to their self-interest and mutual dependence. Schulhofer, an influential

critic of plea bargaining, has challenged the inevitability of such cooperation, pointing to use

of bench trials in half of all cases in Philadelphia.81 Again history offers a stern test.

Workgroup incentives to cooperate existed and could, by their logic, have precipitated

bargaining anytime anywhere but did not. Workgroups in themselves, then, are not enough to

explain the rise of plea bargaining.

2. Historical Accounts of the Origins of Plea Bargaining

Historical research, which argues that plea bargaining arose as a matter of historical

contingency when circumstances combined to produce legal change, led to a sea change in

our understanding by pushing backward in time the point at which we, so far, know the

79 John Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3 (1978); see also the discussion

of Langbein, infra at notes 71–72.

80 Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process (1978); James

Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts

(1977).

81 See Schulhofer, supra note 47.

practice first to have occurred. These historical studies appeared in two waves. The first

focused primarily on internal dynamics within the courtroom. The second explores changes

in courtroom practice but highlights the interplay of law and society, or “contextuality,” in

shaping them.

a. Professionalization and/or Complexity: The First Wave

In the early 1980s, a series of articles concluded that plea bargaining dated back to the late

nineteenth century, and probably not before. Each suggested causes of plea bargaining that

centered, in one way or another, on the “professionalization” and growing complexity of

criminal justice. They highlighted establishment of the police, prosecutors, and judges as full-

time, salaried, expert professionals and the development of complex rules of criminal

procedure, especially on evidence, to guide ever more rationalized trials. They explored the

inner workings .of the courts.

Some authors linked the rise of plea bargaining to an expanding role of the public

prosecutor and prosecutorial discretion. Others intimated that the practice stemmed from

establishment of a professional police force that spawned cooperation or, perhaps, from the

old corrupt police practice of compounding a felony—an earlier form of negotiation. A third

line of thinking pointed to the growing role of lawyers, mushrooming complexity of criminal

trial procedure, and rules of evidence, all of which were said to increase the burden of an

adversarial trial. A corollary thesis pointed to growing caseload pressure for the prosecutor.

Still a fourth line of thought depicted plea bargaining as a modernized form of the traditional

compensation known as “satisfaction” paid to a victim by the accused.82 Finally, some

contended that, as the burden of decision-making shifted from the courtroom and juries to

lawyers and other professionals, plea bargaining developed as part of a rationalization and

professionalization of criminal justice.82 On “satisfaction,” see discussion of Allen Steinberg’s work, infra at note 83.

Despite the importance of this work, many of these “professionalization” or

“complexity” studies encountered serious obstacles of the sort common to pioneering works.

Some proponents of the “professionalization” and/or “complexity” arguments tended not to

systematically examine the dockets of one or more locales to test their hypotheses.

On historical grounds, these early “professionalization” arguments on the cause of plea

bargaining ran into historiographical limitations. For example, the office of the prosecutor in

New York substantially predated what we now know to be the initial rise of guilty pleas there

during the 1840s and 1850s, which undermines the idea that professional prosecutors were a

cause of bargaining. The “compounding” of felonies (paying victims not to prosecute),

mentioned by Alschuler83 and by Friedman, is also a weak candidate; that practice harked

back to precolonial England, predated the establishment of a professional police force in

America, and was practiced primarily by police detectives descended from the old

constabulary that had operated for more than a century before the 1830s and 1840s.84 The

establishment of a professional police force as a potential cause is interesting, since such a

force began in London a decade before one appeared in America. However, no evidence yet

exists that the police in England were involved at that point in bargaining. More important,

the police were established in the United States in 1839, which is several years after plea

bargaining had begun.

Similarly, while procedural complexity appears to have increased in the late nineteenth

century, plea bargaining operated in the American courts decades earlier. In England,

83 Albert W. Alschuler, Plea Bargaining and Its History, 13 L. & Soc’y Rev. 211 (1979).

84 Leon Radzinowicz, A History of English Criminal Law 313–18 (1956). Similarly, the tradition of

offenders paying “satisfaction” to victims to settle a case preexisted plea bargaining by many

decades; some contend it is descended from the seventh-century Anglo-Saxon practice of accepting

“blood money” to forego vengeance; see Oscar Handlin & Mary Flug Handlin, Commonwealth: A

Study of the Role of Government in the American Economy: Massachusetts, 1774–1862 (1969).

procedural complexity blossomed during the late eighteenth century, but, as the records of the

Old Bailey show, it was accompanied by a modest dip in guilty pleas to both initial and

reduced charges. Relatedly, caseload pressure, Fisher’s corollary candidate as a cause of

bargaining, had been a complaint about American courts since colonial days, so that it, too,

long predated bargaining.

Finally, plea bargaining substantially predates the rationalization of work when courts

became large, bureaucratic institutions in the late nineteenth century. On grounds of

proximity, necessity and sufficiency, these arguments all encountered empirical problems.

Yet, despite their flaws, these “professionalization” accounts of the rise of plea bargaining, as

do some embedded studies, contribute importantly to our sense of forces transforming plea

bargaining. More research is needed to fully grasp the impact of the police.

Let us turn now to the “professionalization” and trial or procedural “complexity” studies

that are empirically embedded in the records of a jurisdiction. Langbein’s account of plea

bargaining arises from his innovative work on the origins of the adversarial criminal trial in

England based on cases from London’s Old Bailey and pamphlet accounts of trials. Langbein

depicts the rise of adversarialism as produced by a change from lawyer-free to lawyer-

dominated proceedings. Defendants traditionally were denied counsel in English felony

cases. Early trials provided an “altercation” between the defendant, offering unsworn

testimony, and a private prosecutor, usually the victim. By the 1730s, Langbein shows that

judges began allowing defendant’s counsel to cross-examine accusing witnesses. Those

lawyers “captured” budding adversarialism and crowded out the accused. By the dawn of the

nineteenth century, trials changed from a chance for the accused to tell their story into a place

for the defense to contest the prosecution’s case. With this transformation, Langbein argues,

the complexity of criminal procedure and the intricacy of rules of evidence grew. Similar

changes also appeared in America later. For Langbein the expanding role of lawyers and

mounting complexity of criminal procedure, especially rules of evidence, “ultimately

destroyed the system . . . [by] render[ing] trials [virtually] unworkable as [a] routine

dispositive [process] for . . . serious crime.”85 This complexity, along with proliferation of

lawyers, created, he argues, strong pressure to negotiate guilty pleas. In Langbein’s words,

“when trials were short and rapid, the Crown had no incentive to engage in exchange, and

thus the defendant had no bargaining chips.” Moreover, “[t]rial judges [initially] actively

discouraged criminal defendants from tendering guilty pleas.”86 This important work raises

two questions. First, if lawyer-dominated proceedings and complexity sparked guilty pleas in

England after 1780, how can this be reconciled with a dip in guilty pleas during the 1770s

and 1780s at the Old Bailey although guilty pleas do later rise all through the 1800s? Perhaps

John Langbein implies that it takes some time for the effects of evidentiary complexity to be

realized. Second, how can one explain the early appearance of plea bargaining in Boston’s

lower court by the 1830s (as shown by Ferdinand and Vogel), where proceedings were brief

and expeditious and lawyers for the defence conspicuously absent?

Like Langbein, Friedman and Percival emphasize a growing role for lawyers. They also

point to rationalization of the law, professionalization of police, and increasing use of

scientific evidence as primary causal factors inducing plea bargaining by making trials more

burdensome.87 In their study of a California county, Friedman and Percival situate the birth of

plea bargaining almost a hundred years later than Langbein, although they point to similar

causal factors. They dispute Langbein’s claim of earlier complexity in America, possibly

85 John Langbein, Understanding the Short History of Plea Bargaining, 13 L. & Soc’y Rev. 261, 265

(1979).

86 John Langbein, The Origins of the Adversary Criminal Trial 19 (2003).

87 Lawrence M. Friedman & Robert V. Percival, The Roots of Justice: Crime and Punishment in

Alameda County, California, 1870–1910 (1981).

because they study lower courts. Friedman later summarized, “trials were short, most

defendants had no lawyer and had to cobble together . . . their own defence, and there was not

much quibbling about niceties of evidence.”88 Yet viewing U.S. criminal justice from its

“colonial past to the end of the twentieth century,” he observed, professionalization “is surely

one of the master trends of the . . . period.”89 On this point, one must note that American

professionalization is primarily a late nineteenth century phenomenon, making it an unlikely

cause given that bargaining already operated earlier in the antebellum years. To his credit,

Friedman was agnostic on whether plea bargaining occurred earlier, asserting only that it

“certainly existed in the late nineteenth century, and perhaps even earlier.”90

Feeley likewise points to an expanded role for lawyers and the growing complexity of

criminal process as causes of plea bargaining based on his study of the courts of New Haven,

Connecticut, and later on the Old Bailey in London. Perhaps because he initially examined a

lower court outside a major city, Feeley likens nineteenth century American trials to those of

eighteenth-century England. “Defendants were not represented by counsel; they did not

confront hostile witnesses . . . [meaningfully]; they rarely challenged evidence or offered

defenses of any kind,” and trials were conducted quickly, often at the pace of several per

day.91 Countering claims that resource limits and crowding produced plea bargaining, Feeley

argues that the reality is just the opposite—increased resources, growing involvement of

lawyers, and complexity of cases produced American plea bargaining.92 He claims that

88 Friedman, supra note 4, at 237–38.

89 Id. at 67.

90 Id. at 251.

91 Malcolm Feeley, Plea Bargaining and the Structure of the Criminal Process, 7 Justice Sys. J. 338,

345 (1982).

92 Id. at 342.

adversarialism increased as complexity grew after mid-century and so concurs with Langbein

and Friedman that bargaining arose as a result of the burdens of growing complexity in late

nineteenth century America. Here, Feeley encountered problems of historical sequencing too

due to the earlier rise of American bargaining.

Almost twenty years later, Feeley launched a new argument that plea bargaining began

in England in the 1780s, and he attributes its rise there to several causal factors: the rise of the

public prosecutor, more complex offenses, growing procedural complexity, and the rise of

court professionals, especially lawyers, including defense attorneys.93 Yet while defense

attorneys first appear in felony cases in England around 1740 and procedural complexity

subsequently grows, there is as yet no sign of a start of guilty-plea-based bargaining there

decades later, or evidence of a high rate of guilty pleas at all. Data from the Old Bailey for

the decade 1780-89 shows a rate of 0.22 percent for guilty pleas to an initial charge, 4.82

percent for guilty pleas to a reduced charge, and 5 percent for the combination of the two.

The rate for guilty pleas to initial charge is higher for literally every other decade of the

century. The rate for 1760-69 of guilty pleas to a lesser charge was 5.19 for 1760-69 and 4.35

percent for 1750-59; both were periods before complexity increased. The combined rate were

higher for 1700-19 as well.94 Thus, guilty pleas actually dropped slightly during the late

eighteenth century—challenging the claim that complexity sparked an increase.

Ferdinand and Fisher focus on the growing role of the prosecutor. Ferdinand argues that

plea bargaining begins in Boston’s lower court during the 1830s. He finds guilty plea rates

rising from 5.2 percent in 1832 to 19 percent in 1838 and climbing thereafter.95 Ferdinand

93 Malcolm Feeley, Legal Complexity and the Transformation of the Criminal Process: The Origins

of Plea Bargaining, 31 Israel L. Rev. 183 (1997).

94 Mary Vogel, “Plea Negotiation in the Age of Reform: Origins in 19 th and Early 20th Century

England” (forthcoming).

examines regulatory and vice cases and claims bargaining begins there.96 Analysis of

concessions is limited. Ferdinand claims the expanding prosecutorial power and discretion

generates bargaining—though micro-dynamics are unspecified. Clarification of the roles of

the court clerk, police officials, and the public prosecutor who appears in the lower court in

the 1840s (in serious cases) would add strength. Logic of regulatory cases in the Anglo-

American courts—which aim to threaten prosecution to prompt remediation—calls for

attention.

Fisher too points to prosecutorial power, along with heavy caseload and rigid/mandatory

sentencing, as the causes of plea bargaining. He studies regulatory and murder cases in mid-

tier courts 1789–1910 in Massachusetts.97 Fisher describes plea bargaining as the “reaction of

two chemical ingredients”—existence of a public prosecutor and prosecutorial power to

bargain conferred by mandatory sentencing.98 Caseload pressure motivates. He contends the

earliest bargaining began in the late eighteenth century (for regulatory crimes), disappeared in

the early nineteenth, and reappeared in the 1840s (for both regulatory and murder offenses).99

Bargaining began, he argues, over charges, and later over sentences. The sample is 4,142

cases, but only 122 cases occurred between 1789 and 1809.100 Fisher bases his argument on

evidence that forty-four of sixty-six cases between 1789 and 1809 ended in a “plea.”101

95 Theodore N. Ferdinand, Boston’s Lower Criminal Courts, 1840–1859 (1992).

96 For a fuller critique of the data and their analysis, see Mary Vogel, supra, note 2.

97 Fisher, supra note 4.

98 Id. at 36.

99 Id. at 33.

100 Id. at 234.

101 Id. at 22 & 249.

“Plea,” for Fisher, has an unexpected meaning—not guilty pleas but pleas of nolo

contendere.102 “Guilty plea,” he states, refers to cases where “the record reveals no

compensating concession.”103 Fisher tells us that, until the 1830s, all “clear bargains” in

liquor cases involved pleas of nolo contendere.104 The work has little to say about guilty pleas

until the 1840s. Analysis of concessions is limited.105 Thus, Fisher essentially revives Oscar

and Mary Handlin’s account of pleas of nolo contendere in Massachusetts during the 1790s in

Commonwealth.106 Tonry has argued that prosecutors and mandatory sentencing have

coexisted historically without sparking plea bargaining; he argues that defendants contest

cases more vigorously.107 Heumann shows that new prosecutors must be “socialized” to

bargain.108 Fisher, like Vogel, envisions a transformation of plea bargaining to a more

bureaucratic process by the end of the 19th century.109 At this point, his argument about the

role of the prosecutor – as in the case of professionalization and/or complexity theorists –

becomes useful.

b. “Contextual” Arguments on Interpenetration of Law and Politics:

Second Wave

102 Id. at 249 n.23.

103 Id. at 22.

104 Id. at 249.

105 Id. at 54.

106 Oscar and Mary Handlin, Commonwealth (1947).

107 Michael Tonry, Mandatory Penalties, in 16 Crime and Justice 250 (Michael Tonry ed., 1992).

108 Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense

Attorneys 26 (1978).

109 M. Vogel, supra, note 2.

By the 1990s, the early historical studies were being countered, in some respects, by a second

wave of work. These accounts, all embedded in local records, emphasized the contingent

influence of political and social context on the courts. The new series of historical studies

start with a presumption of the embeddedness of the courts in society. They show plea

bargaining to emerge earlier in America than do the “professionalization” and “complexity”

studies.

Roots in Private Prosecution. Steinberg first pushed back in time the point at which plea

bargaining began to Philadelphia in the 1870s, arguing the practice arose out of private

prosecution whereby complainants advanced their own cases and sometimes granted leniency

through “satisfaction.”110 Steinberg argues that, as the American state developed after the

Civil War, we see a transition of the prosecution function to a fully public one. At this point,

he argues, the concessionary approach was incorporated within an increasingly public

prosecutorial regime.111 As we know, other work has now found plea bargaining operating

earlier in the nineteenth century—including my own work and that of McConville and

Mirsky, discussed next. Philadelphia’s courts, however, have always been unique and

Steinberg’s important work may be unearthing a distinctive path of development there.

3. Political Stabilization, Social Ordering, and Legitimation of

Authority

My work shows that plea bargaining emerged in Boston during the 1830s.112 This is the

earliest instance of the practice known so far to exist. It appeared amidst the crime, violence,

and stirrings of popular politics of the Age of Jackson, a politically crucial time when the

110 Alan Steinberg, The Transformation of American Criminal Justice: Philadelphia, 1800–1880, at

46, 64 (1989).

111 Id. at 185–200, 252–56.

112 Vogel, supra note 2.

United States made the transition from republic to democracy. We statistically analyzed the

complete docket of the Boston Municipal Court at ten-year intervals from 1830 to 1890 to

explore the effect of guilty pleas on type and magnitude of sentencing imposed. The study

reveals how plea bargaining, and the courts more generally, became part of an innovative

institutional framework of governmentality in post-Revolutionary America and a foundation

for a regime for the normalization of conduct. Its aim was a productive workforce,

responsible citizens, and a people committed to ethical living.113

By the 1830s, Boston was a national hub of legal innovation from which new ideas and

practices spread by diffusion to other cities. Plea bargaining was one such advance. An urban

elite, “Brahmins,” seeking to sustain its besieged power, as democratic populism surged,

played a key part in reforging order. It was their response to rampant crisis and risk, coupled

with efforts to consolidate order, legitimacy of institutions of self-rule, and their own position

that led them to create new legal forms. Plea bargaining appears to have had its American

origin in a modestly counterrevolutionary phase of elite reaction to transformative change—a

dynamic that appears to have had its counterpart in England at this same time.114 During the

1830s and 1840s, crime, rioting, and unrest were pervasive. Industrialization proceeded apace

and growing cities drew migrants from the countryside who created a vibrant and volatile

urban life. Officials sensed risk to property, order, and prosperity. Disorder and violence

abounded. Religious beliefs, long a wellspring of cohesion and consensus, weakened.

Because self-rule was still new and little in the way of local governance was yet set in

place, there arose a perceived threat to property, to the social order, and to elite power

embedded in that way of life. Concern was rife as to whether the new republic would survive.

City officials were well-aware of rioting in England with the political potential it held. By the

113 Mary E. Vogel, Between Markets and Hierarchies, 22 King’s College L.J. 335 (2011).

114 M. Vogel, supra, note 90.

mid-1830s, extension of the franchise added electoral challenge. Efforts to reconsolidate

control elicited new state responses. To re-establish social control without fanning

resentment, leaders turned to the ideology of a rule of law as a rationale for compliance, and

to the discretionary capacities of the courts.

The courts stepped forward to play a key role. To reconsolidate order, city leaders began

incremental initiatives at reform. They approached social control not coercively but in ways

that reinforced their party’s claim to represent the popular will. Judicial decision-making and

court practice took on a policy focus as economic and cultural elites turned there as a new

venue for pursuing their agendas.115 During the “formative era” judges re-envisioned law in

terms of its policy implications beyond the case at hand. Judges reimagined themselves as

agents of “popular sovereignty.”

Given the nascent state of local political institutions, the courts stepped forward to shape

relations of citizens to the state, promote political stability, and bolster public regard for

institutions of self-rule. Reaching back into the traditions of the common law, the courts

embraced time-honored mechanisms of episodic, or intermittent, leniency and reworked them

for a new context of popular politics.116 What was distinctive about these mechanisms was

that to receive leniency, one needed the testimony of character witnesses.117 Thus, its receipt

was contingent on one’s embeddedness in the web of social relationships of community and

everyday life.118 By drawing witnesses from the ranks of household and community

115 See Morton Horwitz, The Transformation of American Law (1987).

116 See Vogel, supra note 2; Vogel, supra note 4.

117 Nicola Lacey, “The Resurgence of Character” in A Duff and S Green, eds., Philosophical

Foundations of Criminal Law (2011)

118 Mark Granovetter, “Economic Action and Social Structure: The Problem of Embeddedness” 91

American Journal of Sociology 481-510.

governance, traditional hierarchies were reinforced. Proceedings were broadly educative and

formative of a new political subject.119 During the 1830s and 1840s, judges recrafted

elements of discretionary leniency into a new legal practice of plea bargaining. While closing

cases in a hotly demanded reform, it retained for the courts substantial control over

sentencing. Judges took concessionary practices such as the pardon and moved them up

before a judgment—lending leniency a more contractual quality.120 Simpler, less costly, and

almost always conditionless, guilty plea bargains quickly surpassed pleas of nolo contendere

in volume. Plea bargains came to prominence initially in criminal cases—especially larceny

and assault.

Plea bargaining emerged as a significant innovation during the 1830s; by 1840 the

practice of granting leniency where a guilty plea had been entered was well established.121

The practice reflected incremental improvisation by an elite attempting to bolster the order

crucial to robust market functioning, economic development, and their own besieged political

fortunes. Plea bargaining was accepted by old and new elites because of the ongoing control

it gave them, through sentencing discretion, over policy implementation. Defendants, largely

lower class persons in the lower court, acceded to the practice because it held out a sense of

recurring leniency, the appearance of control over one’s fate through negotiation, and

elimination of burdensome state oversight of defendants’ lives through the practice of

keeping cases “open” on file.

Plea bargaining also held gains for judges and eventually for prosecutors and defense

attorneys, which helps to explain its acceptance by courts. For judges, plea bargaining offered

a rejoinder to the failed codification movement that had sought to restrict their discretion; it 119 M Vogel, supra, note 95.

120 W. F. Kuntz, Criminal Sentencing in Three Nineteenth Century Cities: A Social History of

Punishment in New York, Boston and Philadelphia, 1830-1855 (1988).

121 See Vogel, supra note 2; Vogel, supra note 4.

offered a new, more conciliatory, customary means of retaining discretion and a predictable,

familiar menu of penalties, which, in contrast to common law, were knowable by defendants

in advance. It also had, thus, the capacity to deter. For prosecutors, bargaining afforded

latitude in high profile cases; the high conviction rate afforded by plea bargains became much

valued. For defense attorneys, criminal cases were not highly lucrative, so they lost little in

fees by expeditious bargaining. And bargaining expanded their discretion too.

What occurred was a sort of “triage” or social sorting. In relying on character witnesses,

employment records, and family ties, the courts attempted to identify for leniency those

accused who were hardworking family people who had simply made a misstep in a generally

worthy life. These could be reclaimed as productive labor and virtuous citizens. They were

distinguished from transients and “ne’er-do-wells” who were sentenced to custody. Those

granted leniency were often released under the watchful eye of their intercessors in a nascent

community-based approach to justice. Plea bargaining underwent two transformations during

the mid- to late 19th century in Boston – the first with the rise of ethnic patronage politics,

1850-1890, and the second, the emergence of the courts as large scale bureaucratic

institutions after 1890.

4. Politicization of the Courts through Tammany Patronage at

Mid-Nineteenth Century

Finally, McConville and Mirsky locate the rise of plea bargaining in New York to the 1840s.

They argue plea bargaining emerged amidst a transformation of criminal justice in the New

York City Court of General Sessions during early to mid-nineteenth century. McConville and

Mirsky state: “Although a small percentage of . . . guilty pleas . . . [occurred] earlier . . .,

the . . . dramatic transformation to guilty pleas occurred . . . only after mid-century.”122 They

122 MConville & Mirsky, supra note 4, at 194.

depict guilty plea rates ranging from zero to 10 percent between 1810 and 1845 with a jump

to over 40 percent by 1850, which is sustained, with increases, thereafter.123 During this

period, McConville and Mirsky note, “there was a dramatic shift in trial outcomes . . .

through a reduction in the proportion of top count convictions, an increase in the proportion

of uncharged lesser included-offence convictions and an increase in acquittals on the top

counts.”124

The authors point to a vibrant lawyering culture in New York, which, in the early

nineteenth century celebrated the jury trial. In New York at mid-century, this trial suddenly

gave way to plea bargaining. McConville and Mirsky argue that “[a]fter mid-century,

significant changes in the socio-political character of New York City occurred whereby …

population [growth,] . . . reorganization of city government, expanded suffrage and the

emergence of professional politicians linked to the Tammany Society . . . inaugurated an era

of [politicization and] ‘ward heeling’ . . ..” The authors suggest that “the proliferation of non-

trial dispositions occurred during a process of professional degradation” and politicization of

the courts.125

According to McConville and Mirsky, one “result of politicization appears to have been

that the prosecution’s . . . [position was weakened] because of the inherent unreliability of a

pre-trial process that involved . . . Tombs’ lawyers and elected Police Justices.” They also

point to problems at trial and tell us: “Moreover, the District Attorney became an operative of

Tammany Hall patronage whose constituents were . . . [often] subject to prosecution . . . [and]

resulted in the District Attorney exercising favour” on their behalf. Finally, they note:

“Similarly, in those cases that were prosecuted, . . . judges. . ., now nominated and vetted by

123 Id. at 200.

124 Id. at 202.

125 Id. at 219.

Tammany loyalists, engaged in criminal misdeeds favouring defendants with political

connections.”126

McConville and Mirsky argue that “the idea that the transformation to guilty pleas . . .

[was] is an aspect of ‘history as progress’ brought forth by the rise of professionalism is

troubling because evidence abounds that the shift . . . occurred . . . abruptly and was not . . .

an evolutionary process . . . [that related to an increase in] . . . [capable] lawyers.” Their work

also rebuts what they term “the functionalist argument” that crowding in the courts produced

plea bargaining. They state that “[t]hroughout the entire period, 1800-1865, delay was not a

factor and cases moved expeditiously, taking little more than a month from initial appearance

before the magistrate to final disposition.”127 In a challenge to Fisher, McConville and Mirsky

conclude: “Indeed, our data demonstrate that there was little relationship between caseload

and guilty plea rate.”128 They find growing diversity among court personnel by mid-century

that leads them, after mid-century, to downplay responsiveness to elite concerns.

In both their repudiation of the caseload pressure hypothesis and their emphasis on the

appearance of plea bargaining by mid-19th century, the import of political economy, and the

growing influence of patronage politics in patterns of case disposition and/or sentencing after

mid-century, McConville and Mirsky’s work shares common ground with my own study of

the origins of plea bargaining in Boston. Yet, their work differs in pointing to a significant

rise of guilty pleas in New York only after the mid-nineteenth century. Both their work and

mine see a role for patronage politics -- though later in Boston and never as fully corrupt as in

New York. Although they differ on the role of elites and politico-legal dynamics, they are

mutually broadly confirmatory.

126 Id. at 219–20.

127 Id. at 284–85.

128 Id. at 221.

While quite a number of studies have been conducted on the origins of American

bargaining, the British literature on origins has been slower to develop. One early leading

work, Baldwin and McConville’s Negotiated Justice is more contemporary in focus.129 My

own article, “Plea Negotiation in the Age of Reform: Origins in 19th Century England” is

forthcoming. 130 Responding to important issues raised by Professor Langbein on evidentiary

developments in late 18th century England, my article explores both Quarter Sessions and

Assizes in the late 18th and 19th centuries. It points to the 1690s and early-to-mid 1800s as

two key periods when guilty pleas surge in the English courts.

V. Consequences

This chapter now brings together, for the first time, the results of research over the last

seventy years on the consequences of plea bargaining. Perhaps because of the rocky

theoretical terrain, much of the empirical research on consequences of contemporary

bargaining tends to be a bit thinly conceptualized. In addition, critical analysis is limited and

methodological quality is uneven. We return to those outcomes to which the critiques of plea

bargaining directed us: false convictions, wrongful acquittals/dismissals, equity in sentencing,

and administrative efficiency.

1. False Convictions and Wrongful Acquittals/Dismissals

One crucial concern is plea bargaining’s effect on courts’ capacity, relative to trial, to

distinguish innocent from guilty persons and to convict the guilty. To some extent, these

129J. Baldwin and M. McConville, supra, note 27.

130 M. Vogel, supra, note 90.

objectives exist in tension. Minimizing false convictions involves a commitment to “due

process.” Maximizing convictions of the guilty prioritizes “crime control.” For reasons we

will see, compared to trials plea bargaining appears to produce fewer errors in the form of

acquittals (though not necessarily dismissals) of the guilty and more in the form of false

convictions.131 Whether it is the gain of leniency or aversion to a trial penalty that leads some

innocent defendants to plead guilty, what emerges is a practice that is rightly a cause for

concern. It appears plea bargaining is most prone to falsely convict where guilty plea rates are

high.

a. False Convictions

An equitable court should acquit the innocent while convicting the guilty. Where inequity

exists, innocents may disproportionately be falsely convicted. To the extent plea bargaining

convicts those acquittable at trial, it boostsunfairness. Only two empirical studies address

bargaining’s effect on false conviction. They are, however, strong ones. Two others present

literature-based conceptual analyses. The studies are exclusively American as British work

has focused more on the decision to plea guilty and its impact on sentencing. The empirical

studies show that plea bargaining increases rates of false conviction. Best estimates say

between 35 and 69 percent of defendants convicted through plea bargains would have won at

trial. Although limited methodologically, these studies support concern about amplified false

convictions.

In the 1970s, Finkelstein studied guilty plea practices in federal courts to test the

assumption in some U. S. Supreme Court decisions that defendants convicted through plea

131 Numerous confirmed wrongful convictions in the United States have occurred through negotiated

guilty pleas. See Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go

Wrong (2011) (examining 250 DNA-based exonerations).

bargains would have lost at trial.132 He computed “implicit rates of non-conviction” and

concluded the assumption is unfounded. Instead, he argued that “more than two-thirds of

‘marginal’ plea bargain defendants (i.e., defendants pleading guilty above the share who

would have been convicted if all went to trial) would have been acquitted or dismissed . . .

[had they] contest[ed] their cases.”133 He found a correlation between “implicit rates of non-

conviction” and guilty plea rates. Finkelstein argued that, while the U.S. Supreme Court’s

presumption that a defendant would have lost at trial may be valid for strong cases,

prosecutors also bargain (perhaps more often) over weak ones. He concluded the assumption

is especially problematic in weak cases—precisely most likely to involve innocent

defendants. Methodologically, the study, though strong, raises a few issues that we cannot

consider due to space limits here, although Finkelstein acknowledged and tried to address

them.

Rhodes also estimated the probability that defendants who plead guilty would have been

convicted at trial, using data on 845 cases.134 He estimated likely acquittals at rates nearly

equal those for defendants actually tried. To control for differences between cases tried and

those resolved by guilty pleas, Rhodes specified a model in which probability of conviction is

132 Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89

Harv. L. Rev. 293 (1975).

133 Id. at 293. His method, in brief, is as follows: If a 10 percent increase in guilty pleas leads to no

change in the percent of non-convictions, it suggests all those pleading guilty would have been

convicted at trial. However, if a 10 percent increase in guilty pleas leads to a 5 percent decrease in

non-convictions, then 5 percent more defendants are being convicted than would have been at trial.

134 William M. Rhodes, Plea Bargaining: Who Gains? Who Loses? (report for Law Enforcement

Assistance Administration; Institute of Law and Social Research, Washington, DC, 1978). Of the

845 cases drawn from the Prosecutorial Management Information System, 234 were assaults, 174

were robberies, 268 were larcenies, and 169 were burglaries.

a function of the defendant’s age, arrest on same day as crime, availability of physical

evidence, number of charges, arrest at scene of the offense, number of lay witnesses,

defendant’s release on personal recognizance, third party release, corroboration that a crime

was committed, and presence of exculpatory evidence. The effect of each variable on the

probability of conviction was then estimated by using a Probit model and data for defendants

convicted at trial.135

Rhodes found that 34 percent of defendants pleading guilty to assault would have been

acquitted compared to the 65 percent of those at trial, for robbery 84 percent compared to 78

percent tried, for larceny 69 percent compared to 66 percent tried, and for burglary 68 percent

compared to 69 percent tried. Rhodes concludes that, but for guilty pleas, the conviction rate

would be substantially reduced. Rhodes’s study, while thought-provoking, must be viewed

cautiously for reasons arising from its methodology; the estimating equation, for example,

leaves out variables such as race, employment record, and prior convictions.

Building on growing evidence by the 1990s of plea bargaining’s tendency to increase

false convictions, Scott and Stuntz argue that the practice’s inability to detect innocent

defendants is not an inherent drawback but results from a flawed bargaining structure.

Imagining plea bargaining as a contract, they assert the problem lies in structural

impediments to efficient negotiation. They explore the potential for duress, unconscionability

due to information deficits or unequal power of the parties, poor judgment or other inability

of defendants to discern their “true” interests, and cognitive biases. Information deficits that

make it harder for innocent defendants to identify themselves and stem from the costs of

getting information, barriers to testing for or signaling information about innocence, and

heterogeneity of defendants that precludes reliance on shared norms instead of signaling

present other hurdles. Thus, they problematize the presumptions about voluntariness

135 Estimated coefficients were then applied to comparable data for those pleading guilty to compute

their predicted probabilities of conviction if tried. Id.

underpinning U.S. Supreme Court decisions. The solution, they argue, is real. It requires

regulating bargaining rather than abolition.136

Specifically, Scott and Stuntz contend that it would be better to boost the ability of the

bargaining process to detect innocence directly. The difficulty, they argue, is that innocence

claims are hard to test and the trial process to do so is costly. Scott and Stuntz recommend

“second best solutions”—improving the defendants’ “welfare by ensuring that cases ‘sixty

percent . . . ’ likely to be convicted at trial are ‘priced’ differently from cases ‘ninety percent .

. . . ’ likely to be” so disposed of. They note that “current law inexplicably . . . [encourages]

prosecutors to treat close cases the same as clear ones.”137 Scott and Stuntz suggest new rules

governing both fixing and enforceability of sentences. Their argument, however, overlooks

the fact that, by facilitating more lenient sentences for weak cases, this may increase chances

of false conviction.

A final study by Wright offers a “trial distortion theory” positing that plea bargaining is

dysfunctional when pleas distort outcomes expected at trial. Such distortion is not always

problematic—for example, when falling acquittals and/or dismissals result from improved

screening or better-prepared prosecutors.138 Reduced acquittals, however, may signal that the

prosecution or defense is striking agreements too cheaply or that judicial penalties for trial are

too high. Wright shows that “the federal system . . . [since the 1980s features] increasingly

severe sentences . . . [even as] adoption of federal sentencing guidelines . . . enhance[s]

prosecutorial and judicial power to reward [defendants’] cooperation.” Wright points out that

136 Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1934

(1992)

137 Id. at 1952.

138 Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U.

Pa. L. Rev. 79, 83 (2005).

districts using these techniques heavily “produced both higher guilty plea rates and lower

acquittal rates.” He concludes that the substantial differentials in sentencing on offer

“convinced more defendants to abandon worthwhile defenses.”139 By producing those surplus

convictions, plea bargaining increases false convictions.

b. Acquittal/Dismissal of the Guilty

Negotiated guilty pleas by definition achieve convictions. But they are often induced by

dismissal of one or more charges. If plea bargaining increases non-convictions of the guilty

beyond the rate we would see at trial, this introduces injustice. But studies suggest that plea

bargaining may reduce dismissals: where bargaining is prohibited and officials cannot temper

unduly harsh sanctions, judges dismiss more cases.140 Plea bargaining, by providing a way to

moderate sanctions, may inhibit that.

In a landmark study, Newman concludes that dismissal of charges, despite evidence to

convict at trial, is not uncommon. Usually, he argues, this occurs where “punishment . . .

appears . . . useless [or] unduly harsh.”141 Rhodes affirms that dismissals are often entered for

defendants who could be convicted at trial.142 Because plea bargaining tempers sanctions and

substitutes for full acquittal or dismissal, equity may be enhanced by convicting some guilty.

Newman concurs that bargaining reduces dismissals—especially of defendants “known” to

be guilty—with minimal increase in false convictions.

139 Id. at 85–86.

140 Tonry, Mandatory Penalties, supra note 90.

141 Donald J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial xv

(1966).

142 Rhodes, supra note 108.

Two other studies similarly suggest plea bargaining reduces dismissals of the guilty; both

show that when explicit bargaining is restricted, dismissal rates rise.143 Therefore, we find

that, besides reducing acquittals, plea bargaining also decreases dismissals by offering

graduated penalties. In both ways, the practice convicts more criminal offenders including

more of the guilty.

2. Equity in Sentencing

One of plea bargaining’s most controversial features is the differential it generates between

sentences that follow guilty pleas and trial convictions. If the differential is too great,

voluntariness of the plea may be undermined.

It is widely held that, for equity, sentencing severity should be gauged relative to the

seriousness of a crime. When plea bargaining offers leniency, it distorts both rehabilitative

and retributive rationales for punishment. Overall, the evidence from previous research

suggests that defendants who plead guilty generally receive lighter sentences. However, the

results of these studies are surprisingly mixed. Further, little is known about the conditions

for implementing concessions.

Several studies from the 1960s and 1970s found that defendants pleading guilty are

actually treated more leniently than at trial. Using data from California, Greenwood and

coauthors found evidence that guilty pleas elicit sentencing concessions.144 Blumberg found

143 Thomas Church, Jr., Plea Bargains, Concessions and the Courts: An Analysis of a Quasi-

experiment, 10 L. & Soc’y Rev. 377 (1976); Note, The Elimination of Plea Bargaining in Black

Hawk County: A Case Study, 60 Iowa L. Rev. 1053 (1975).

144 Peter W. Greenwood et al., Prosecution of Adult Felony Defendants in Los Angeles County: A

Policy Perspective (Rand Corp. 1973) (study controlled for type of crime but not other factors,

including prior convictions and offense seriousness).

in a metropolitan court that “the defendant who . . . [is] convicted after trial receives . . . less

generous treatment than one who . . . negotiate[s].”145 Miller et al. also concluded from

researching twenty county courts that “evidence of differential sentencing . . . exists in many

jurisdictions.”146 Newman reported that “judges in all three states [studied] . . . show greater

leniency . . . to the defendant who pleads guilty than . . . [one] who demands a jury trial.”

Newman notes, however, that concessions may be “more apparent than real” since they can

be nullified by post-conviction decisions.147 In England, Hood, in his study of the Crown

Court, similarly found guilty pleas to be statistically linked for adults to a shorter sentence –

though a smaller differential than in many American studies; he concluded about one-third of

the gap was attributable to plea with the remainder attributable to uncontrolled case and

defendant characteristics.148 In an interesting shift, Feilzer and Hood found no difference in

Youth Court though plea did produce 1.4-fold greater chance of custody.149 In light of this, it

makes sense that Hedderman and Moxon found that 65% of defendants reported their guilty

145 Abraham S. Blumberg, Criminal Justice 31 (1967).

146 Herbert S. Miller et al., Plea Bargaining in the United States 41 (Institute of Law and Criminal

Procedure, Georgetown University Law Center, for Law Enforcement Assistance Administration

1978). Methodologically, these studies tend to link data and conclusions informally through the

author’s judgment rather than an explicit analytic scheme.

147 Donald J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 61, 98

(1966); see also Dominick R. Vetri, Guilty Plea Bargaining: Compromises by Prosecutors to

Secure Guilty Pleas, 112 U. Pa. L. Rev. 864 (1964) (finding 55 percent of prosecutors believed

reductions were regularly granted for guilty pleas, and more felt such reductions are justified).

But see H.J. Shin, Do Lesser Pleas Pay: Accommodations in the Sentencing and Parole Processes,

1 J. Crim. Justice 27 (1973) (finding concessions granted by prosecutors may subsequently be

revoked by parole boards).

148 Roger Hood, Race and Sentencing: A Study in the Crown Court (1992).

pleas were explicitly led by the prospect of a discount and 33% reported pleading guilty in a

charge bargain.150

Two studies from this era reached more mixed conclusions. Rhodes found that for

assault, larceny, and burglary, defendants who pled guilty received sentences comparable to

those tried. For robbery, however, pleading guilty elicited noticeable concessions.151 The

findings run contrary to the belief that plea bargaining universally produces leniency and

highlight the importance of looking for variability across offenses. Alschuler’s informal

survey of prosecutors also yielded mixed findings on differential sentencing, reflecting

controversy among prosecutors about whether and how sentencing leniency occurs.

Regarding charge bargaining, Alschuler reported that some prosecutors felt “reduction in

level of a charge, like a reduction in number of [counts], rarely affects the defendant’s

sentence,” although “others dispute this contention.”152 The sole arguments that sentence

reductions do not occur as a result of plea bargains come from a pair of 1970s studies of court

operations. Jacob concluded that “[plea bargains] do not . . . produce more lenien[cy] when

one controls for the type of case . . . handled.”153 Jacob’s earlier research with Eisenstein on

courts in Baltimore, Detroit, and Chicago found defendants received comparable sentences at

149 M. Feilzer and R. Hood, Differences or Discrimination?: Minority Ethnic Young People in the

Youth Justice System (2004).

150 Carol Hedderman & David Moxon, Magistrates’ Court or Crown Court? Mode of Trial Decisions

and Sentencing (Home Office Research Study, 1992).

151 Rhodes, supra note 108. Note, however, that the proportion of variance explained (R2) by

Rhodes’s estimating equation is low; the study did not test statistical significance.

152 Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 97 (1968).

153 Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process 191 (1978).

trial to those pleading guilty,154 although their regression analysis raises questions about the

validity of their findings.155

By contrast, more than three decades later, Eisenstein with other coauthors found clear

evidence of an average 15 percent “trial penalty” in U.S. federal courts.156 This finding is

consistent with other recent studies; Albonetti found comparable trial penalties in a study of

federal drug trafficking crimes.157 A notable recent study by Kim, however, took issue with

the methodology of earlier work and concluded instead that, properly assessed, federal

defendants incur a sentence on average 64 percent longer if they are convicted at trial.158 As

for U.S. state court systems, King’s recent study of trial versus guilty-plea sentences in five

states with sentencing guidelines found that differentials varied widely among offenses but

154 James Eisenstein, & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal

Courts (1977).

155 Specifically, Eisenstein and Jacob dismissed the impact of guilty pleas due to the small additional

variance explained by the disposition mode variable in their stepwise regression. This study design

holds two particular hazards. One is that multicollinearity between disposition mode and the

variables previously selected by the stepwise regression may have biased the results. The second is

that there may be too little variance in the mode-of-disposition variable, due to the frequency of

guilty pleas, to generate statistical evidence of a relationship even if one exists.

156 Jeffery T. Ulmer, James Eisenstein & Brian D. Johnson, Trial Penalties in Federal Sentencing:

Extra-Guidelines Factors and District Variation, 27 Just. Q. 560, 575 (2010).

157 Celesta A. Albonetti, Sentencing Under the Federal Sentencing Guidelines: Effects of Defendant

Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991–

1992, 31 Law & Soc’y Rev. 789, 805 tbl.2 (1997) (trial penalties of 6 to 14 percent for both black

and white defendants).

158 Andrew Chongseh Kim, Underestimating the Trial Penalty: An Empirical Analysis of the Federal

Trial Penalty and Critique of the Abrams Study, 84 Miss. L.J. 1195 (2015).

that there was clear evidence that guilty pleas led to sentence discounts for a large majority of

crimes.159

Beyond sentencing reductions, Nardulli and coauthors in the 1980s examined effects of

bargaining on sentencing consistency—that is, whether bargaining leads to greater variability

in penalties. They contended that plea bargaining produces marked consistency in sentencing

patterns and pointed to a “high level of consistency . . . in . . . measures of sentence clusters”

and “uniform treatment of plea cases is also fairly consistent across various classes of

defendants.” The data, they concluded, suggest a coherent “bureaucratic justice” in which

felony courts provide justice “premised not on strict adherence to due process ideals, or

committed to the refined, individualized treatment of individuals . . . but rather one premised

on strict adherence to a bureaucratic routine [and] . . . pragmatic concerns.” This is, however,

“consistent with the existence of a trial tariff which punishes defendants who request

'unreasonable' trials.”160 In the same era, Miethe also observed consistency in plea bargaining

sentencing when he examined bargaining under mandatory sentencing rules. He found that

uniformity from mandatory sentencing was not eroded by socioeconomic or other disparities

due to plea bargaining, and concluded that “social differentiation [between persons receiving

harsh or lenient sentences] . . . did not . . . [change] appreciably after implementing

[determinate sentencing] guidelines.”161 Routinized bargaining, then, may produce predictable

outcomes. It may also yield no greater socioeconomic disparity than trial, although English

159 Nancy J. King et al., When Process Affects Punishment: Differences in Sentences After Guilty

Plea, Bench Trial, and Jury Trial in Five Guidelines States, 105 Colum. L. Rev 959, 973–75

(2005) (assessing sentences in five states for a variety of offenses and finding that, for most, there

is strong evidence of more severe sentences after trial than after a guilty plea).

160 Peter F. Nardulli et al., Criminal Courts and Bureaucratic Justice, 76 J. Crim. L. & Criminology

1103, 1129–30 (1985). The study does not consider that mitigating and aggravating factors may be

muted.

scholarship shows that members of ethnic minorities may be less likely to “bargain” at all

because of distrust of the system.162

In sum, several clear themes surface. Despite public concern that its leniency favors the

guilty, plea bargaining also appears to assure that more guilty persons are convicted than at

trial. Both acquittals and dismissals decline. Perhaps the greatest drawback of this practice is

its propensity to convict the innocent, especially where bargaining is widespread and includes

the weakest cases. As to whether leniency is actually received by those who negotiate, the

evidence remains somewhat divided. The preponderance of findings suggests that bargaining

usually does yield concessions.163

3. Administrative Efficiency

Proponents of plea bargaining, including the U.S. Supreme Court, argue it promotes

administrative efficiency and conserves court resources. Some argue this creates a

“compelling” state interest in bargaining and that caseload pressure induces bargaining.

Studies have produced mixed evidence for these claims.

Berger studied effects of a 1971 prohibition on plea bargaining for three serious crimes

in Maricopa County, Arizona. He saw no increase in trials, although his analysis was

relatively casual. For example, he concluded that the bargaining ban “did not cause a rise in

161 Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An

Investigation of the Hydraulic Displacement of Discretion, 78 J. Criminal L. & Criminology 155,

171–73 (1987).

162 See Sanders & Young, supra note 29; Roger Hood, Race and Sentencing (1992).

163 Research from England explicitly reveals such a calculus at work. See Sanders & Young, supra

note 29; Carol Hedderman & David Moxon, supra, note 150.

number of trials” and that guilty plea rates remained about 70 percent.164 But that does not tell

us whether fewer cases were charged, more were dismissed, or tacit bargaining continued

despite the formal ban.

Another study examined effects (during two months) of eliminating plea bargaining for

felonies in an Iowa county. Elimination of bargaining was, here, accompanied by four other

supportive actions.165 In that case, abolishing plea bargaining “increased efficiency” when

coupled with other reforms, such as new laws permitting immunity for witnesses who testify

for the state and an alternative to prosecution through deferred judgments and supervised

release.166 Cases filed declined 23 percent, dismissals decreased 50 percent, verdicts of guilty

were reached in 50 percent more cases, and trials increased by only one single case.

A third study that also looked at consequences on caseloads in one county of banning

charge bargaining for drug-sale cases yielded markedly different findings. Based on

interviews with twenty-three prosecutors, judges, and defense attorneys, Church concluded

that after charge bargaining stopped, the trial rate “soared” and cases resolved by guilty pleas

“fell considerably,” although guilty pleas still produced 75 percent of convictions.167 From

164 Moise Berger, The Case Against Plea Bargaining, 62 A.B.A. J. 621, 623 (1976).

165 The four concomitant changes included: (1) enactment of a deferred judgment statute whereby a

defendant might plead guilty to an offense and, without conviction, be placed on probation; (2)

increased police/prosecutor cooperation beginning in 1973; (3) additional funds to supervise

deferred judgment releases; and (4) passage of a statute enabling a prosecutor to offer witnesses

immunity in return for their testimony.

166 Note, The Elimination of Plea Bargaining in Black Hawk County, supra note 117.

167 Church, supra note 117, at 383 (1976). Compare Robert A. Weninger, The Abolition of Plea

Bargaining: A Case Study of El Paso County, Texas, 35 UCLA L. Rev. 265 (1987) (finding the

trial rate doubled and delay in case processing increased during the two years following a plea

bargaining ban).

this Church inferred that implicit bargaining emerged (possibly tacit sentence bargains),

prosecutors sought more dismissals, and trials increased for judges who were unlikely to

engage in tacit sentence bargains. Church concluded that the elimination of all bargaining

“would be accompanied by a . . . considerable increase in the number of trials.”168

Schulhofer argued that bargaining is driven neither by caseload pressure nor courthouse

workgroup cooperation. Based on observing the efficient operation of the bench trial system

used to resolve 49 percent of cases at the Philadelphia courts, he made the case that plea

bargaining is pervasive not because it is necessary but because it serves a popular but

problematic conception of justice. Schulhofer insisted that “competitive norm[s] may

strongly affect behavior” within organizations as in markets. He argued that expeditious

trials, aggressive prosecutorial policies, a strong public defender’s office, and professional

norms that disfavor quick compromises preserve the adversarial process and reduce

bargaining.169

In sum, while evidence is mixed on bargaining’s administrative consequences, overall

the work counsels skepticism about the assumption that bargaining fosters efficiency.

Research suggests a more complex interplay among bargaining, caseloads, professional

culture, and other factors.

VI. Conclusion

The U.S. Supreme Court has shifted from an essentially tolerant stance toward plea

bargaining to one of explicit support in recent years. However, many of its decisions rest on

assumptions about equity, voluntariness, and administrative efficiency, which are challenged

168 Church, supra note 117, at 399.

169 Schulhofer, supra note 47, at 1096, 1099. An earlier study of California courts also found robust

adversarial norms in bench trials and other settings. See Lynn M. Mather, Plea Bargaining or

Trial? The Process of Criminal Case Disposition (1979).

by critics and empirical evidence. The Court continues to set a high bar for recognizing

coercion and to maintain that large trial penalties, as well as vastly differential resources

available to prosecution and defense, have no effect on voluntariness or fairness. Yet

confirmed cases of innocent persons who falsely plead guilty challenge that stance. Overall,

England has been much more attuned to minimizing coercion in plea bargaining, notably by

limiting discounts in the Sentencing Guidelines that can be offered in exchange for guilty

pleas.

Research on plea bargaining provides some notable findings even though much remains

to be learned. The preponderance of the evidence supports a fairly robust conclusion that

bargained pleas do, often, induce more lenient sentences. However, in the presence of

mandatory and other harsh sentencing practices, the overall impact is to generate higher rates

of conviction, increased probability of custody and longer sentences for all defendants even

as bargained ones tend to be lighter. Research reflects consensus that plea bargaining reduces

the likelihood that guilty defendants will go free, because compared to a system with many

more trials, fewer offenders avoid conviction due to dismissals or acquittals on technicalities.

Available evidence about effects on administrative efficiency, while mixed, does not support

even speculative conclusions that plea bargaining expedites case flow and eases caseload

pressure. Emerging work on the origins of plea bargaining challenges arguments that the

practice arose as a response to crowding in the courts. Original causes of plea bargaining

appear to been political and to have given birth to this practice in Jacksonian America during

the transition to democracy in the 1830s and 1840s. Over time, the practice has undergone

transformation so that, first, ethnic patronage and, today, bureaucratic processes influentially

have shaped the practice. New work is showing that in England guilty pleas surged briefly

during the 1690s and then continually from the early 1800s onward with the story of its

origins forthcoming. In America, plea bargaining has, together with mandatory sentencing

and other highly punitive sentencing practices, been marshalled into the carceral turn that has

helped spur mass incarceration since the 1990s. In England, mandatory sentences,

imprisonment for public protection, special sentences for “dangerousness”, and other practice

already discussed have had a comparable effect. Today, some new practices such as deferred

prosecution agreements are beginning to revive earlier pre-emption and correction of

wrongdoing. For many decades, however, the pre-emptive logic of the common law has been

distorted as plea bargaining has been placed at the service of a purely punitive approach in a

fundamental misreading of the law in modernity.

References

John Baldwin & Mike McConville, Negotiated Justice (1977)

G. Nicholas Herman, Plea Bargaining (2012)

John Langbein, The Origins of the Adversary Criminal Trial (2003)

Richard L. Lippke, The Ethics of Plea Bargaining (2011)

Mike McConville & Chester L. Mirsky, Jury Trials and Plea Bargaining: A True History

(2005)

Mary E. Vogel, Coercion to Compromise: Plea Bargaining, the Courts and the Making of

Political Authority (2007)