1 Indeed, this argument was given support by the US. Supreme Court itself in a classic statement in Santobello v. New York, 404 US. 257, 260 (1971), in which the court claimed: “Properly administered, it [plea bargaining] should be encouraged. If every criminal charge were subjected to a full-scale trial, the states and the federal government would need to multiply by many times the number of judges and court facilities”.Google Scholar

2 Church, Thomas W. Jr., “In Defense of ‘Bargain Justice,’ 13 Law & Soc'y Rev. 509 (1979).Google Scholar

3 See, e.g., Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges and Defense Attorneys (Chicago: University of Chicago Press, 1978) (“Heumann, Plea Bargaining”).Google Scholar

4 According to the official 1990 report produced by the state agency responsible for collecting these statistics, 33% of Lincoln County's 1,328 non-drunk driving convictions were obtained in jury trials. This was 11 times higher than Washington County's jury trial rate of 3% for its 1,504 non-drunk driving convictions. Overall, 4% of this state's convictions were obtained in jury trials. In seven of this state's counties, none of the convictions were obtained at trial—100% of the convictions were obtained by guilty pleas. Note that even if the official figure of 33% for Lincoln County is inaccurately high (my personal estimation would confirm it to be about 15%—still an impressive fivefold increase over Washington County), it is clear that Lincoln County prosecutors and public defenders were handling a remarkably larger number of jury trials than were their counterparts in Washington County. Interestingly enough, the elevenfold trial rare differential between the two counties would effectively still hold true (prosecutor per prosecutor and public defender per public defender) even if one were to use my unofficial and lower figure of 15% rather than the official figure of 33% for Lincoln County. This is because Lincoln County—despite similar population and caseload—had fewer than half as many prosecutors as did Washington County (8 full time and 2 part time vs. 20 full time) and fewer than half as many public defenders (5 full time and 3 part time vs. 11 full time and 3 part time). However one measures it, it is clear that Lincoln County prosecutors and public defenders were handling at least 10 or 11 times as many jury trials as were their counterparts in Washington County. As to judges, differences in trial volumes appeared to be irrelevant, since (as explained later) judges did not appear to be working close to capacity—not even in more trial-prone Lincoln County.Google Scholar

5 Things were even less risky for the defendant in Lincoln County, where I later served as a prosecutor. There, a defendant would routinely be permitted to withdraw a guilty plea after being told by the judge what the sentence of the court would eventually be. As I discuss later, this strange practice was compatible with the legal culture in Lincoln County, which gave defendants every opportunity to invoke their right to a jury trial should they so desire. The fact that it encouraged guilty pleas was an unintentional result.Google Scholar

6 My findings that judges are often lazy is not unique. See, e.g., Malcolm Feeley, The Process Is the Punishment 196 (New York: Russell Sage Foundation, 1979), in which Feeley notes that many “prosecutors, public defenders, and some of the more candid judges” expressed the view that “judges are basically lazy people” who seek to avoid “the hard work of presiding over a trial”.Google Scholar

7 For a discussion of judges' attitudes toward plea bargaining, see Heumann, Plea Bargaining ch. 6. Heumann found that new judges quickly learn of and adapt to the extensive use of plea bargaining. They soon realize that the practice reduces their work, reduces the likelihood of appeals (and consequent embarrassment), and helps them “move” their business. In fact, Heumann noted that judges come to like plea bargaining so much that many say they would continue the practice even if smaller caseloads made it “unnecessary”.Google Scholar

8 For an extended discussion, see James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown, 1977). Eisenstein and Jacob point out that criminal defendants do not really deal with individuals (such as their lawyer) but rather with workgroups consisting of prosecutors, defense lawyers, judges, and others who work together toward shared goals of disposing of cases, maintaining the cohesion of the workgroup, and lowering the group's stress and uncertainty.Google Scholar

9 No defense attorney in his or her right mind would ever wait for disposition of a case to attempt to collect a fee. In fact, judges will often grant a continuance on the basis of a defense attorney's vague, in-court reference to “Rule 1” (code for “1 haven't been paid yet”).Google Scholar

10 Not having “client control” is the ultimate loss of face. The very fact that such a term exists and is commonly used is another indication of the coercive pressures many attorneys placed on their clients.Google Scholar

11 It is virtually futile to argue an excessive sentence on appeal. Appellate courts in my jurisdiction hated such arguments and were loath to disturb a trial court's sentence.Google Scholar

12 Brunk, Conrad G., “The Problem of Voluntariness and Coercion in the Negotiated Plea,” 13 Law & Soc'y Rev. 527 (1979), who suggests that a genuine lack of coercion requires the presence of real choice and that having “the book thrown at you” for electing a trial is hardly conducive to real choice.CrossRefGoogle Scholar

13 Blumberg, Abraham S., “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession,” 1 Law & Soc'y Rev. 15, 18 (1967).CrossRefGoogle Scholar

14 Baldwin, John & McConville, Michael. Plea Bargaining and Plea Negotiation in England,” 13 Law & Soc'y Rev. 287, 296 (1979). Such studies are apparently rare in the United States, although one exception was Jonathan Casper's American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, N.J.: Prentice-Hall, 1972) (“Casper, American Criminal Justice”). Casper noted that a defendant does not see the decision about the punishment received as being based on “abstract notions of morality,” but rather as the result of a game in which courthouse actors use the same “hypocritical and manipulative ways” that the defendants themselves use in dealing with people. Id. at 80–81.CrossRefGoogle Scholar

15 See also Lynn Mather, Plea Bargaining or Trial? (Lexington, Mass.: Lexington Books, 1979). Mather notes that “one important consequence of this simultaneous consideration of the guilt and sentencing issues is that information which is only supposed to pertain to one issue may become relevant to the other.” Id. at 141.Google Scholar

16 Callan, Sam W., “An Experience in Justice without Plea Negotiation,” 13 Law & Soc'y Rev. 327 (1979). Callan, a jurist, points out that “there are many seminars on sentencing policies for judges. But prosecutors, who actually determine sentencing policies, don't spend much time at seminars, or anywhere else, considering the proper methods of controlling criminals.”Id. at 328.CrossRefGoogle Scholar

17 See note 4 above.Google Scholar

18 Id.Google Scholar

19 Nardulli, Peter W., “The Caseload Controversy and the Study of Criminal Courts,” 70 J. Crim. L. & Criminology 89, 96–97 (1979). This study showed that Chicago judges spent only two to three hours per day on the bench and did not do much work thereafter. The 16 courtrooms looked at over a two-year period produced an average of only one disposition per day, even though 70% of the dispositions were dismissals or guilty pleas.CrossRefGoogle Scholar

20 Some may wonder whether elected judges wouldn't run a risk of being labeled soft on crime were they to fail to hand out harsh sentences after trials. However, political considerations—at least in my jurisdictions—did not seem to play much of a role at sentencing. First, most cases attracted little or no press coverage. Second, judges in my state (as in many states) were elected for extremely long terms. Third, once elected, judges (like members of Congress) were almost always retained election after election. Fourth, few voters seemed to care about or even know the names of their county judges and relied on party loyalties to decide how to vote. (Once I told a close friend not to vote for a particular judge who was running for reelection. After a discussion, my friend became convinced that this judge should not be voted for. On election day, however, my friend (a highly educated person) was confronted with a list of names and couldn't remember who not to vote for. He wound up guessing but guessed wrong.).Google Scholar

21 Casper, , American Criminal Justice 106, who reports that “the typical defendant [in the early 1970s] reported that he spent a total of five to ten minutes conferring with his [public defender], usually in rapid, hushed conversations in the courthouse”.Google Scholar

22 This observation was made as well by another former prosecutor–D. Heilbroner, Rough Justice: Days and Nights of a Young D.A. 243 (New York: Pantheon Books, 1990). The author, a former Manhattan prosecutor, notes that “the threat of heavy sentences and the promise of one-time lenient offers must have coerced some innocent men and women into pleading guilty.” To my disappointment, however, Heilbroner goes on to embrace the conventional wisdom that—at least in his highly urban court—such sacrifices of the innocent were necessary “since our deals helped keep the criminal justice system from falling apart.” Id. at 244. Since I have no experience in highly urban courts, I cannot really comment on whether he is correct.Google Scholar

23 Brereton, David & Casper, Jonathan, “Does It Pay to Plead Guilty 16 Law & Soc'y Rev. 45 (198182). Analyzing thousands of cases in multidimensional contingency tables, the authors found a substantial “trial tax”.CrossRefGoogle Scholar

24 Alschuler, Albert W., “The Changing Plea Bargaining Debate,” 69 Cal. L. Rev. 652, 668 (1981).CrossRefGoogle Scholar

25 Rubinstein, Michael L. & White, Teresa J., “Alaska's Ban on Plea Bargaining,” 13 Law & Soc'y Rev. 367 (1979); and Weninger, Bruce, “The Abolition of Plea Bargaining: A Case Study of EI Paso County, Texas,” 35 UCLA L. Rev. 265 (1987). Other studies suggest quite the opposite. (at least as to large urban areas); see, e.g., Heumann, Milton & Loftin, Colin, “Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute,” 13 Law & Soc'y Rev. 393 (1979), which reports that the Detroit District Attorney's attempt to abolish plea bargaining in felony cases involving guns failed because other practices (such as bench trials cleverly done and creative sentencing practices) developed which effectively simulated plea bargains. My own view is that in those midsized counties where I practiced law, plea bargaining certainly could have been and should have been greatly reduced, and perhaps could have been even nearly abolished, though this would have required a few reforms, some collective will, and some normative leadership.Google Scholar