Dickering for Justice: Power, Interests, and the Plea Bargaining Juggernaut

George Fisher. Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford, Calif.: Stanford University Press, 2003. xi + 397 pp. Figures, tables, appendixes, notes, bibliography, and index. $65.00.

"Necessity never made a good bargain."

—Benjamin Franklin

One statistic from George Fisher's provocative Plea Bargaining's Triumph indicates it may be time for Americans to update a comfortably classical image of Justice, the goddess who greets us at the courthouse steps. Blindfolded so she may weigh the facts without prejudice, Lady Justice balances her scales in one hand, her sword at the ready in the other. Now square that figure with this one: In 2001, 94 percent of the criminal cases adjudicated in the U.S. district courts ended in a plea of guilty or no contest (p. 223). And it's not only in the federal courts that defendants are hurling themselves upon Justice's sword. Legal experts estimate that 90 percent of all criminal cases in the United States terminate in more or less the same anticlimactic way. It is not that our criminal defendants are especially suppliant or repentant. In the vast majority of those cases, defendants "copped a plea"—American slang for a distinctively (if not uniquely) American practice. In the high stakes trading rooms of our overwhelmed criminal justice system, most defendants make the same choice "American Taliban" John Walker Lindh did in 2002. They exchange their plea—along with their constitutional right to a jury trial—for a prosecutor's promise of a reduced penalty. Plea bargaining is a complex, ritualized, and controversial set of institutional practices. But despite much resistance here and abroad, plea bargaining continues to proliferate around the globe. All of which suggests it might be time to chase Lady Justice from the courthouse steps and install in her place a more suitable icon—maybe Monty Hall, the money-smiled impresario from Let's Make a Deal. ¹

Where did plea bargaining come from? And how did it become such a force in our criminal justice system, leaving the jury trial and other institutional rivals in the dust? Plea bargaining was first exposed as a ubiquitous practice in the 1920s. Reform-minded legal academics and social scientists studying the Prohibition-era crisis of urban law enforcement discovered with alarm that overtaxed prosecutors were skirting the judicial process by cutting deals right and left. ² In Al Capone's Chicago, the Columbia professor Raymond Moley reported, a mere 209 out of a total 13,117 felony prosecutions initiated in 1926 resulted in jury convictions. As an administrative procedure, Moley noted, plea bargaining was well concealed. The scholar had to know where to look for traces of deal-making in the boilerplate language of docket books and criminal case files—a methodological challenge for historians ever since. "The very difficulty with which the facts concerning this practice have been unearthed," an exhausted Moley wrote, "shows how easy it has been for prosecutors to indulge in this sort of compromise without exciting public interest" (p. 7). Moley also attempted the first serious historical analysis of plea bargaining's rise. In New York, plea bargaining had spread slowly during the first half of the nineteenth century and became pervasive by 1900. Setting a model for later historians, Moley attributed plea bargaining's institutional growth to the mounting pressure of criminal caseloads, which gave prosecutors a strong incentive to deal.

Since the 1920s, legal commentators have kept the law reviews well stocked in articles sizing up the merits and deficiencies of plea bargaining. Some condemn plea bargaining for corrupting the judicial process: in place of a public trial aimed at determining a defendant's guilt or innocence, prosecutors hold unchecked power to make poor defendants and public defenders an offer they cannot refuse. ³ Others accept or even extol plea bargaining as an efficient mechanism that saves public resources and provides rational defendants with meaningful choices. ^4...