Plea Bargaining's Triumph: A History of Plea Bargaining in America (review)

Fisher has produced the best account of the rise and "triumph" of plea bargaining in the literature of American criminal justice history. He has also produced a provocative work of interdisciplinary history that merits the attention of all scholars who write about the past. In method and mode of explanation, Plea Bargaining's Triumph challenges every form of social history that, as Fisher puts it, "highlights the play of social forces and minimizes the role of human actors" in accounting for institutional change (2). "While any study of so broad a phenomenon as plea bargaining must attend to the larger social setting," he insists, "we are unlikely to find the root causes of so court-focused a practice anywhere outside the courtroom" (11).

Three questions, each focusing on a key "human actor," drive the analysis. Prosecutors have no authority to dictate sentences. So how, when, and under what circumstances did they manage to secure the power to make plea bargains happen? Trial judges have the formal authority to sentence. So how, when, and under what circumstances did they decide to surrender their authority by accepting bargained pleas? Criminal defendants have an absolute authority to plead or not to plead. So how and under what circumstances did they choose to collaborate with prosecutors, thus making possible the transformation of the criminal-justice system from an adjudicative model to an administrative model? Fisher seeks answers in four principal ways—archival, contextual, comparative, and game-theoretic.

Middlesex County, Massachusetts, provided Fisher's main archive. His data set includes docket books, court record books, and selected prosecutor file papers for the period from 1789 to 1910. Massachusetts session laws, supplemented with published legislative records, provide data on the changing legal environment, illuminating the possibilities and constraints that shaped and reshaped the incentives and ultimately, Fisher argues, the behavior of prosecutors, judges, and defendants. Previous studies of plea bargaining's history (deftly summarized and placed in historiographical perspective in the book's first chapter) supply comparative data on New York, California, and other jurisdictions that Fisher regularly compares with his own findings and often reinterprets in light of his analysis of the Massachusetts case. Game theory, invoked between the lines more than in the text itself, contributes to Fisher's assessment of the calculus of plea bargaining as its context changed over time.

Fisher orchestrates these sundry methods with great skill as he chronicles the emergence of "charge bargaining" in antebellum liquor licensing and murder prosecutions, the growth of "on file" bargaining in the middle of the nineteenth century, and the collapse of judicial resistance to the bargaining of all criminal pleas during the fourth quarter of the nineteenth century. In two concluding chapters, Fisher shows how the "triumph" of plea bargaining strangled a rival legal form (the indeterminate sentence), how plea bargaining fostered the growth of a complementary legal form (the public defender), and how plea bargaining became entrenched by the advent of the United States Sentencing Guidelines in 1987.

The analysis, the organizational scheme, and the prose are clear as crystal from beginning to end. Fisher's argument is exceptionally tight. A heavy burden of persuasion now looms before scholars inclined to spurn his main premise and to look "outside the courtroom" for explanations of plea bargaining's "triumph" in America.