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Back to the Future: The Centrality of Plea Bargaining in the Criminal Justice System
Published online by Cambridge University Press: 18 July 2014
Extract
Using Professor George Fisher's wonderful new book, Plea Bargaining's Triumph as a springboard and roadmap for a journey into plea bargaining's past and present status, this brief essay will attempt to build a theory accounting for the centrality of plea bargaining in today's—and tomorrow's—criminal justice system. By looking back, Fisher illuminates the present, and suggests a future for plea bargaining in the disposition of the cases. His analysis ends with “plea bargaining's triumph;” with its emergence as the single most important (and powerful) factor in the disposition of criminal cases. I will applaud, but qualify his arguments and speculate about “plea bargaining's future.” His looking back, led him to conclude that plea bargaining coopted or caused most criminal justice innovations of the past two decades, and that almost anthropomorphically, it emerged victorious. His understanding of the “causes” of plea bargaining's centrality deserves applause along with qualification; his painting of a picture of plea bargaining “victory” is correct, and is fruitfully linked to a future informed by his understanding of a past.
First, some general ground rules for what I will and will not do in this essay. I will not systematically or exhaustively summarize Fisher's arguments, nor will I referee the disagreements he surfaced with the respect to the work of many major studies of plea bargaining and its history. Suffice it to say that this is a very careful historical study of the origins of plea bargaining, and that it primarily relies on a very detailed and very, very careful analysis of the court records of Middlesex County, Mass., mostly for cases disposed of in the 19th century. Based on these data, and secondary analyses of data from studies of plea bargaining in other jurisdictions, Fisher builds a theory of the growth of plea bargaining that is sometimes original, always engaging, and inevitably provocative. Though I take issue with some of his arguments, he must be lauded for the care and clarity of his presentation, and for the enormous literature he uses to develop and support his case.
- Type
- Review Essays/Notes critiques
- Information
- Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 18 , Issue 2 , August 2003 , pp. 133 - 142
- Copyright
- Copyright © Canadian Law and Society Association 2003
References
1 Fisher, George, Plea Bargaining's Triumph. (Stanford: Stanford University Press, 2003).Google Scholar
2 Ibid. at. 6–11.
3 Fisher relies extensively on Friedman, Lawrence and Percival's, RobertThe Roots of Justice: Crime and Punishment in Alameda County, California 1870–1910 (Chapel Hill, NC: University of North Carolina Press, 1981)Google Scholar and on Mike McConville and Chester Mirsky's studies of New York City. See McConville, M. & Mirsky, C., “Criminal Defense of the Poor in New York City” (1986–1987) 15 N.Y.U. Rev. L. & Soc. Change, 581Google Scholar and “The Rise of Guilty Pleas: New York, 1800–1865” (1995) 22 J.L.& Soc'y, 443.
4 Fisher, supra note 1 at 66–68, 200–201.
5 Lichtblau, E., “Ashcroft Limiting Prosecutors' Use of Plea Bargains” The New York Times, (23 September 2003) 1.Google Scholar
6 Fisher, supra note 1 at 157.
7 Fisher, supra note 1 at. 15, 104–109. See also re: the Warren Court's limiting the prosecutor's right to comment on the failure of the defendant to take the stand on his own behalf, ibid. at. 203–204
8 Fisher, supra note 1 at 138.
9 Ibid., at 138–52. Fisher takes issue in particular with Vogel's, Mary, “The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830–1860” (1999) 33 Law & Soc.'y Rev. 161.CrossRefGoogle Scholar See also McConville & Mirsky, supra note 3.
10 See Feeley, M., “Legal Complexities and the Transformation of the Criminal Process: The Origins of Plea Bargaining” (1997) 31 Isr.L.R. 183.CrossRefGoogle Scholar See also Heumann, M., “A Note on Plea Bargaining and Case Pressure” (1975) 9 Law & Soc'y Rev. 515CrossRefGoogle Scholar and Friedman, L. & Percival, R., The Roots of Justice: Crime and Punishment in Alameda County, California 1870–1910 (Chapel Hill: University of North Carolina Press, 1981).Google Scholar
11 Fisher, supra note 1 at 40–43 (prosecutors), 121–24 (judges) and 199–200 (public defenders).
12 Fisher, supra note 1 at 220.
13 Ibid., at 13.
14 Ibid. at 16.
15 Ibid. at 27.
16 Ibid. at 144 [italics in original].
17 Ibid., at 138.
18 Ibid. at 152.
19 Ibid., at 159.
20 On court centered studies, see Heumann, M., Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys (Chicago: University of Chicago Press, 1978)Google Scholar [Plea Bargaining]. On studies placing the court in broader social content, Fisher, supra note 1 at 138.
21 In fact, Fisher notes defendants that plead guilty in theft cases between 1809–1829 actually received longer sentences than those defendants who went to trial (supra note 1 at 53–55). I would argue, though, that what is most important are the defendants' perceptions of rewards for pleading. They may or may not rest on empirical reports, but if defendants believe there is generally a benefit to a plea, they will plead even if some evidence is to the contrary.
22 The seeds of this natural state of plea bargaining, a mixed system and the differing effects case pressure can have on plea and sentence practice can be found in Nardulli, P., The Study of Criminal Courts (Cambridge, MA: Ballinger Publishing Company, 1979) at 201–25.Google Scholar
23 See Casper, J., American Criminal Justice: The Defendant's Perspective (Englewood Cliffs: Prentice-Hall, 1972).Google Scholar See also Plea Bargaining, Introduction supra note 20 at 156–57.
24 Fisher, G., “A Practice as Old as Justice Itself” The New York Times (28 September 2003) sec. 4:11.Google Scholar
25 Ibid.
26 Fisher develops this theme in his book. See, for example, his discussion of “on-file” dispositions, supra note 1 at 66–77. For a more current example of the ability of prosecutors and judges to circumvent seemingly firm and simultaneous proscriptions and on some sentence bargaining by judges see, Heumann, M. & Cassale, L., “Not-so Blissful Ignorance: Informing Jurors About Punishment in Managing Sentencing Cases” (1983) 20 Am. Crim. L. Rev. 343.Google Scholar
27 Fisher, supra note 1 at 230.
28 Plea Bargaining, supra note 20 at 150.