The Social Origins of Plea Bargaining: An Approach to the Empirical Study of Discretionary Leniency?
| Date | 01 June 2008 |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00433.x |
| Author | Mary E. Vogel |
| Published date | 01 June 2008 |
The Social Origins of Plea Bargaining: An Approach to the
Empirical Study of Discretionary Leniency?
Mary E. Vogel
It is in paradoxes that we often find the beginnings of an important story. At
the start of this project, I was drawn by the puzzle of why courts in a society
would suddenly begin to reward those who claimed to have done exactly what
they were accused of. Why extend largesse to those who say, simply, yes, I
did it? It was such musings that sparked my initial interest in plea bargaining.
1
Many whose advice I first sought about the project responded that the study of
plea bargaining had, by the 1980s, `been done'. Yet, it seemed to me that,
while that early research gave me the advantage that the earth had been
turned, many important questions remained to be answered, which a different
methodological approach might enable me to do.
2
As one committed to the
idea of methods as means of restructuring data to disrupt intuitive
associations and reveal their secrets, I set out to devise a new approach.
Under a legal system where it has been said that law is what the courts do,
one striking feature of the American criminal courts is the widespread and
well-established system of plea bargaining.
3
While often thought to be either
an innovation or corruption of the courts during the post-war years, close
study shows that the practice exhibits much deeper historical roots.
4
With
201
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1 This paper draws on research discussed more fully in M.E. Vogel, Coercion to
Compromise: Plea Bargaining, the Courts, and the Making of Political Authority
(2007), published by Oxford University Press whom we acknowledge as the original
publisher of the material. That gives rich bibliographic sources as well as a fuller
explanation of why the practice of plea bargaining started.
2Bythen I had the benefit of having studied comparative-historical methods of socio-
logical research as well as statistics and also of having had considerable work
experience in data analysis through social policy research consultancy.
3 Plea bargaining is defined for the purposes of this study as the entry of a guilty plea
by a defendant in anticipation of concessions from the prosecutor or judge. The
process may be either explicit or implicit.
4 This paper focuses primarily on bargaining with respect to sentence. However, some
concessions in the nineteenth-century docket take the form of reduced charge since
explicit notations of charge reductions, sometimes accompanied by changes of plea are
occasionally evident in the nineteenth-century dockets. While some charge bargaining
negotiated guilty pleas now accounting for the majority of convictions in
America and rising in England as well, understanding how plea bargaining
works is tantamount to knowing what the law, in fact, is.
The purpose of this paper is to show that, by adopting an innovative
methodology, new light could be thrown on previous research by Alschuler,
Langbein, Reiss, Friedman and Percival, Moley, and others.
5
My work
pushes backwards in time the point at which we understand plea bargaining
to have emerged to the American criminal courts during the 1830s and 1840s
± far earlier than had previously been argued. Based on preliminary assess-
ment of nineteenth-century court records for other American cities, it
appears that the plea bargaining described below may be the first known
historical instance of the practice. Among the many path-breaking legal
practices that spread throughout the United States from Boston, plea
bargaining is one whose legacy is most enduring.
PREVIOUS RESEARCH ON PLEA BARGAINING
Since the mid-1960s a wealth of studies have explored the practice of plea
bargaining. Despite its existence being acknowledged as early as the 1920s
and 1930s,
6
recent research has focused almost exclusively on contemporary
bargaining and on three of its facets: the consequences of plea bargaining,
7
analyses of what types of cases tend to be bargained,
8
and explanations as to
why plea bargaining occurs.
9
202
may also have occurred between arrest and appearance in court, the records of the
Charles Street (Suffolk Country) Jail show strong continuity between charge listed at
time of arrest and the charge later shown in the court docket. This suggests that charge
bargaining grew prominent only after sentence bargaining was established.
5A.Alschuler, `Plea Bargaining and Its History' (1979) 13 Law and Society Rev. 211±
45; L. Friedman and R. Percival, The Roots of Justice: Crime and Punishment in
Alameda County, California, 1870±1910 (1981); J. Langbein, `The Criminal Trial
before the Lawyers' (1978) 45 University of Chicago Law Rev. 263±316; R. Moley,
Politics and Criminal Prosecution (1929); A. Reiss, Jr., `Public Prosecutors and
Criminal Prosecution in the United States of America' (1975) 20 Juridical Rev. 1.
6 Missouri Association for Criminal Justice Survey Committee, The Missouri Crime
Survey (1926). New York State Crime Commission, Report to the Commission of the
Sub-Committee on Statistics (1927).
7 For example, see M. Finkelstein, `A Statistical Analysis of Guilty Plea Practices in
the Federal Courts' (1975) 89 Harvard Law Rev. 293; W. Rhodes, `Plea Bargaining:
Who Gains? Who Loses?' (1978), unpublished report for the Law Enforcement
Assistance Administration; M. Heumann, Plea Bargaining: The Experiences of
Prosecutors, Judges and Defense Attorneys (1981).
8 For example, see A. Alschuler, `The Prosecutor's Role in Plea Bargaining' (1968) 36
University of Chicago Law Rev. 50; S. Lagoy, J. Senna, and L. Siegel `An Empirical
Study on Information Usage for Prosecutorial Decision-Making in Plea Negotiations'
(1976) 13 Am. Crim. Law Rev. 435.
9 For example, see Alschuler, id. and op. cit., n. 5; J. Skolnick, Justice Without Trial
(1966); M. Feeley, `Foreword', `Perspectives on Plea Bargaining', and `Pleading
ß2008 The Author. Issue Compilation ß2008 Cardiff University Law School
By the late 1970s, a few articles had probed plea bargaining's history and
suggested that it dated back to some point in the nineteenth century but
probably not before.
10
This work, which focused primarily on appellate
decisions, suggested various historical explanations for the practice. Some
linked the rise of plea bargaining to the expanding role of the public
prosecutor and to the increases in discretion that accrued to that office.
11
Others intimated that the practice stemmed from the establishment of a
professional police force or the old corrupt police practice of compounding a
felony.
12
A third line of thinking pointed to the growing complexity of the
criminal trial and to caseload pressure.
13
Virtually none of these authors had systematically examined the dockets
and history of a particular locale to establish with certainty the contours and
point of origin of the bargaining they sought to explain. Further, on historical
grounds each of the prior arguments had significant limitations. For instance,
the office of the prosecutor in New York substantially predated what we now
know to be the initial striking rise of guilty pleas there during the 1840s.
14
The compounding of felonies, in turn, dated back to pre-colonial England,
predated the establishment of a professional police force in the United States,
and was practiced primarily by police detectives descended from the old
constabulary which had been operating for more than a century before the
1840s.
15
Nor could the establishment of a professional police force be causal
since such a force was established in London prior to the United States. If
establishment of professional police alone were the cause of plea bargaining,
the practice should have arisen in Britain first, which it did not. Finally,
caseload pressure had been cited as a problem by the American courts since
colonial days so that it, too, long predated plea bargaining ± weakening any
claim for its status as a proximate cause. Moreover, Heumann shows that
even current-day caseload and complexity do not initially l ead new
203
Guilty in Lower Courts' (1979) 13 Law and Society Rev. 197, at 199 and 461; H.
Jacob, Justice in America: Courts, Lawyers, and the Judicial Process (1978); R.
Posner, `An Economic Approach to Legal Procedure and Judicial Administration'
(1973) 2 J. of Legal Studies 399. McDonald notes that the crime commissions of the
1920s and 1930s, including Pound and Frankfurter in 1922, the Missouri Association
for Criminal Justice in 1926, the Illinois Crime Survey in 1929, and the US National
Commission on Law Observance and Enforcement in 1931, all emphasized the
`existence and central place of plea bargaining': W. McDonald, Plea Bargaining:
Critical Issues and Common Practices (1985) 2.
10 L. Friedman, `Plea Bargaining in Historical Perspective' (1979) 13 Law and Society
Rev. 247; L.M. Friedman and R.B. Percival, The Roots of Justice: Crime and
Punishment in Alameda County, California, 1870±1910 (1981); Alschuler, op. cit.,
n. 5; and Langbein, op. cit., n. 5.
11 Reiss, op. cit., n. 5; and Friedman, id. (1979).
12 Alschuler, op. cit., n. 5; and Friedman, id.
13 Alschuler, id.
14 Reiss, op. cit., n. 5; and Moley, op. cit., n. 5.
15 L. Radzinowicz, A History of English Criminal Law and Its Administration from
1750: Vol. 4, Grappling for Control (1968).
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