Plea Bargaining and its history[Alschuler-1979]

http://www.jstor.org Plea Bargaining and Its History Author(s): Albert W. Alschuler Source: Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining, (Winter, 1979), pp. 211-245 Published by: Blackwell Publishing on behalf of the Law and Society Association Stable URL: http://www.jstor.org/stable/3053250 Accessed: 31/07/2008 05:32 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=black. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. PLEA BARGAINING AND ITS HISTORY ALBERT W. ALSCHULER For most of the history of the common law, Anglo-American courts did not encourage guilty pleas but actively discouraged them. Plea bar- gaining emerged as a significant practice only after the American Civil War, and it generally met with strong disapproval on the part of appel- late courts. This practice nevertheless became a dominant method of resolving criminal cases at the end of the nineteenth century and be- ginning of the twentieth, and it attracted significant attention and criti- cism as a result of crime commission studies in the 1920s. In recent years, American criminal courts have become even more dependent on the guilty plea, but the good press that plea bargaining currently en- joys in legal and social science circles is a very recent development. This article explores changes in guilty plea practices and in attitudes toward the guilty plea from the Middle Ages to the present. I. THE IDEOLOGICAL COMFORTS OF HISTORY In seeking the historic origins of plea negotiation, one may be influenced by his opinion of the value of this practice. A de- fender of plea negotiation is likely to be comforted by the thought that this bargaining has "always" been with us-a con- clusion that suggests both the inevitability of our nonadjudica- tive methods of processing criminal cases and the unreality of those who would alter these methods dramatically. Similarly, an opponent of "bargain justice" may seek comfort in the con- cept of a bygone golden age in which plea negotiation was un- known-an age from which we departed inadvertently and largely as a result of laziness, bureaucratization, overcriminal- ization, and economic pressure (see Feeley, 1975:23). History does, of course, bear on current plea bargaining is- sues. Social scientists who explain the practice in terms of gen- eral principles of bureaucratic interaction sometimes offer historical support for their conclusions (Heumann, 1978:28-32, 157), and their theories of courtroom dynamics are often poten- tially subject to historical refutation. Similarly, the view that plea bargaining is an "economic necessity" would gain plausi- bility if this shortcut to conviction had been employed for as long as there had been trials-and, even more clearly, the claim of economic necessity would become strained if the Anglo- This is a somewhat abbreviated version of an article that will appear in 79 Columbia Law Review (1979), presented here so that my conclusions will ap- pear with those of Lawrence Friedman, John Langbein, Mark Haller, and Lynn Mather. I am grateful to the participants in the Special National Workshop on Plea Bargaining and to Arthur H. Travers, Jr., James E. Scarboro, John H. Langbein, Mark Haller, Roger Lane, and Richard L. Abel for valuable assist- ance in the preparation of this article. 212 13 LAW & SOCIETY / WINTER 1979 American legal system had survived without plea bargaining during most of its existence. Perhaps more important than the logical bearing of history on any current issue is the mystical and emotional significance of the past. Ideological disputants seem to rival each other in claiming that their positions are traditional. In considering what kind of criminal justice system we ought to have, it may matter little whether plea bargaining is a recent phenomenon. Nevertheless, this historical question frequently generates an emotional response. So strong are the emotional predilections of some defen- ders of plea bargaining that they have made historical state- ments without the slightest evidentiary support. A vigorous endorsement of plea bargaining issued by a California grand jury began: "With respect to plea bargaining, this has been a part of the judicial system ever since man was made to account for crimes against society" (Vallejo News Chronicle, February 6, 1974:8). The en banc United States Court of Appeals for the Fifth Circuit proclaimed in an opinion by Judge Charles Clark: "Plea bargains have accompanied the whole history of this na- tion's criminal jurisprudence" (Bryan v. United States, 492 F.2d 775, 780, 5th Cir., 1974). And Justice William Erickson of the Colorado Supreme Court wrote (1973:839): "Charge and sen- tence concessions to secure pleas of guilty are, and always have been, part and parcel of our criminal justice system." As an opponent of plea bargaining, I have been offended by these rhetorical historical pronouncements and perhaps even more offended by the seemingly knowledgeable, but equally unsupported, assertions of scholars that plea bargaining "ap- parently originated in 17th Century England as a means of mit- igating unduly harsh punishment" (Bond, 1975: ? 1.07; see Dash, 1951:396; McLaughlin, 1969:256-57).1 The defenders of plea bar- gaining have seemed to rely on a sense of what "must have been" in making their historical judgments, but today's method 1 A generally unenlightening historical treatment of plea bargaining is contained in Buffalo Law Review (1974). This student comment maintained that plea bargaining has "ancient antecedents," but it seemed to treat almost everything as an antecedent of plea bargaining (for example, an offender's pay- ment of a fixed fine to his victim in Anglo-Saxon England and the later practice of allowing qualified offenders to assert benefit of clergy). Only by including practices that involved neither a plea nor a bargain was the comment able to support its thesis. ALSCHULER 213 of resolving criminal cases is not, from my perspective, a mat- ter of doing what comes naturally.2 I therefore cannot claim to have approached the history of plea bargaining in an entirely neutral manner, and I am, more than a good historian should be, subject to the ideological temptations that I have described. This paper, however, reflects a sense that a priori historical views should be tested whenever possible, and I have been alert to my biases. At the outset, a preliminary matter of definition ought to be resolved. As I see it, plea bargaining consists of the exchange of official concessions for the act of self-conviction. The conces- sions given a defendant may relate to sentence, the offense charged, or a variety of other circumstances; they may be ex- plicit or implicit; and they may proceed from any of a number of officials. The benefit offered by the defendant, however, is al- ways the same-entry of a plea of guilty. This definition ex- cludes unilateral exercises of prosecutorial or judicial discretion such as an unqualified dismissal or reduction of charges. It also excludes the exchange of official concessions for actions other than entry of a guilty plea, such as offering restitution to the victim of a crime, giving information or testi- mony concerning other alleged offenders, or resigning from public office following allegations of misconduct. 2 I do not deny, however, that the criminal justice system poses inherent temptations for prosecutors and defendants to engage in plea bargaining. Simi- larly, teachers and students face inherent temptations to engage in "grade bar- gaining," the exchange of a favorable grade for a student's waiver of the right to a reading of his final examination (see Kipnis, 1976). In the same way that a prosecutor can relieve caseload pressure through plea bargaining, an instructor can alleviate "bluebook backlog" through grade bargaining, and just as it is in a defendant's interest to secure a favorable sentence, it is in a student's interest to secure a favorable grade. Despite the impulse to engage in grade bargaining that both teachers and students may experience, we surely would not regard this process as natural or inevitable. On the contrary, if it arose, we would view it as a corruption of the grading process. The grade-bargaining analogy is obviously imperfect but may nevertheless be instructive. If grade bargaining began, it would undoubtedly be hidden from public view initially. The first visible signs of the practice would probably emerge in its vigorous condemnation by school officials and the public. If the practice nevertheless persisted and flourished, some observers might begin to offer rationalizations for it: for example, it conserves scarce resources, ensures a prompt and certain conclusion of the grading process, gives students a sense of participation in this process, and alleviates the harshness and arbitrariness that have sometimes characterized grading in the past. Moreover, once grade bargaining became familiar, people might insist that it was inevitable, that it had always occurred in one form or another, and that assertions of its absence at particular times or places should be viewed with extreme skepticism. This paper contends that the history of plea bargaining has exhibited similar stages of development. 214 13 LAW & SOCIETY / WINTER 1979 II. THE EARLY HISTORY OF THE GUILTY PLEA A. The Judicial Discouragement of Confessions From the earliest days of the common law, it has been pos- sible for an accused criminal to convict himself by acknowledg- ing his crime (The Constitutions of Clarendon, chap. 3, 1164; The Assize of Clarendon, chap. 13, 1166). "Confession" was in fact a possible means of conviction even prior to the Norman conquest (Adams et al., 1876:285-88). Nevertheless, confessions of guilt apparently were extremely uncommon during the medi- eval period. In hundreds of reported cases, medieval defen- dants denied "word for word, the felony, the king's peace, and all of it," but historians have found only a handful of recorded instances of confession (Hunnisett, 1961:69). When common law treatises first adverted to the guilty plea, they indicated that the courts were extremely hesitant to receive it. By 1680, Sir Matthew Hale had written: "[W]here the defendant upon hearing of his indictment ... confesses it, this is a conviction; but it is usual for the court ... to advise the party to plead and put himself upon his trial, and not pres- ently to record his confession, but to admit him to plead" (1736:225). Earlier, Ferdinando Pulton had written that the plea of not guilty was "the most common and usual plea" and that "it receiveth great favour in the law" (1609:184). Statements like Hale's persisted in criminal law treatises until the end of the nineteenth century. For example, Black- stone's Commentaries on the Laws of England (1765-69, vol. 4:329) observed that the courts were "very backward in receiv- ing and recording [a guilty plea] . . . and generally advise the prisoner to retract it." Most of the English and American writ- ers who noted this judicial phenomenon did so approvingly (e.g., Chitty, 1816:429), but the established procedure in guilty plea cases did have a notable critic. In his Rationale of Judicial Evidence, Jeremy Bentham declared: In practice, it is grown into a sort of fashion, when a prisoner has [en- tered a plea of guilty], for the judge to endeavour to persuade him to withdraw it, and substitute the opposite plea, the plea of not guilty, in its place. The wicked man, repenting of his wickedness, offers what atonement is in his power: the judge, the chosen minister or righteous- ness, bids him repent of his repentance, and in place of the truth sub- stitute a barefaced lie. [1827, vol. 2:316] Bentham, however, did not propose a more liberal acceptance of guilty pleas. Instead, he urged abolition of the guilty plea and the substitution of a more careful and rigorous examina- tion of the defendant, an examination designed "to guard him ALSCHULER 215 against undue conviction, brought on upon him by his own im- becility and imprudence" (1827, vol. 3:127). Official reports of guilty plea cases remained infrequent un- til the last quarter of the nineteenth century, but John H. Langbein's study of the Old Bailey during the late seventeenth and early eighteenth centuries (1978a) offers a glimpse of the English criminal justice system in operation. Working from journalistic accounts designed for a popular rather than a pro- fessional audience, Langbein discovered that jury trials were extremely rapid in an era when neither party was represented by counsel, an informally selected jury might hear several cases before retiring, and the law of evidence was almost en- tirely undeveloped. Trials were in fact so swift that between twelve and twenty cases could be heard in a single day. The administrative pressure for plea bargaining was accordingly small, and Langbein found no indication of this practice. He did find a number of cases in which the court urged defendants to stand trial after they had attempted initially to plead guilty. The case of Stephen Wright in 1743 seems especially re- vealing. Wright announced that he would plead guilty to rob- bery in order to spare the court trouble, and he expressed hope that the court and jury would recommend executive commuta- tion of the death sentence mandated for this crime. The court responded, in effect, that the defendant had it backwards, for the court could not take notice of any favorable circumstances in his case unless he agreed to stand trial. Wright then yielded to the court's advice (Langbein, 1978a:278). The earliest reported American decision on the guilty plea (Commonwealth v. Battis, 1 Mass. 95, 1804) reveals that the practice in America was no different. A 20-year-old black man was accused of "raping a 13-year-old white girl, breaking her head with a stone, and throwing her body into the water, thereby causing her death." When the defendant pleaded guilty to indictments for rape and murder, the court informed him of the consequences of his plea, and that he was under no legal or moral obligation to plead guilty-but that he had a right to deny the several charges and put the government to the proof of them. He would not retract his pleas-whereupon the court told him that they would allow him a reasonable time to consider of what had been said to him-and remanded him to prison. They directed the clerk not to record his pleas, at present. [Ibid.] When the defendant was returned to the courtroom, he again pleaded guilty. Upon which the court examined, under oath, the sheriff, the gaoler, and the justice [who had conducted the preliminary examination of the de- fendant] as to the sanity of the prisoner; and whether there had not been tampering with him, either by promises, persuasions, or hopes of 216 13 LAW & SOCIETY / WINTER 1979 pardon, if he would plead guilty. On a very full enquiry, nothing of that kind appearing, the prisoner was again remanded, and the clerk di- rected to record the plea on both indictments. The report concluded that the defendant "has since been exe- cuted" (ibid.:96)3 Even at the end of the nineteenth century, courts some- times followed a procedure reminiscent of the one that Hale had described more than two hundred years earlier. In the first United States Supreme Court opinion to uphold a guilty-plea conviction (Hallinger v. Davis, 146 U.S. 314, 324, 1892), the Court observed: "The [trial] court refrained from at once ac- cepting [the defendant's] plea of guilty, assigned him counsel, and twice adjourned, for a period of several days, in order that he might be fully advised of the truth, force and effect of his plea of guilty." A few compilations of early nineteenth-century judicial records confirm the apparent absence of a regular practice of encouraging guilty pleas. Theodore N. Ferdinand examined the work of the Boston Police Court in 1824 and reported that only 11 percent of the 2,208 defendants who came before the court entered pleas of guilty (1973: table 2). Raymond Moley (1928:108) computed the percentage of felony convictions "by jury" and "by confession" in New York State for 88 years begin- ning in 1839. At the outset of this period, only 25 percent of all felony convictions throughout the state were by guilty plea, and in the urban counties of New York and Kings the figure was even smaller, 15 percent.4 There were several reasons for the reluctance of the courts to receive pleas of guilty during the formative period of the common law and for centuries thereafter. First, these pleas were apparently distrusted. William Auckland observed: [W]e have known instances of murder avowed, which never were com- mitted; of things confessed to have been stolen, which never had quit- ted the possession of the owner. ... It is both ungenerous therefore, and unjust, to suffer the distractions of fear, or the misdirected hopes of mercy to preclude that negative evidence of disproof, which may possibly, on recollection, be in the power of the party; we should never 3 In the only other American decision prior to the Civil War to discuss the guilty plea extensively (United States v. Dixon, 1 D.C. (1 Cranch) 414, 1807), the persuasion of the court was successful, and the defendant withdrew his plea. 4 Of course one cannot know whether an expectation of leniency moti- vated the guilty pleas that criminal defendants did enter, but I am inclined to doubt it. These statistics reflect a period before the development of profes- sional police forces, a time when substantial numbers of criminal defendants were probably apprehended during the commission of their crimes or following hot pursuit so that their guilt was beyond question. The guilty plea rates re- vealed by Moley and Ferdinand seem smaller than one might expect even in the absence of plea bargaining. ALSCHULER 217 admit, when it may be avoided, even the possibility of driving the inno- cent to destruction. [1771:167] Probably more important than the judicial distrust of guilty pleas was the fact that English felony defendants were not rep- resented by counsel. It was a basic duty of trial judges to see that these defendants "should suffer nothing for [their] want of knowledge in the matter of law" (Rex v. Twyn, 6 How. St. Tr. 513, 516, 1663). The common advice to stand trial may have been presented, not in what we would regard today as a judi- cial capacity, but in the judge's role as counselor. Still another reason for the courts' discouragement of guilty pleas was that death was the prescribed penalty for