PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA

Vol. 13 No. 11 (November 2003)

PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA by George Fisher. Stanford, CA: Stanford University Press, 2003. $65.00. 397 pp. Hardcover ISBN 0-8047-4459-9.

Reviewed by Candace McCoy, School of Criminal Justice, Rutgers University - Newark. Email: cmccoy@andromeda.rutgers.edu .

Rarely does a work of legal history speak so clearly to contemporary crisis as does George Fisher’s book PLEA BARGAINING’S TRIUMPH. If your field is not criminal courts, let me summarize those courts’ current degradation and show why this book so well illuminates the deep-seated problems and difficulties of reform presently besetting them. These problems and difficulties are of grave concern to every citizen – whether interested in criminal law and procedure or not – because the triumph of plea bargaining partly explains why there is a “vanishing jury” and, more fundamentally, why the modern state is able to coerce people accused of crimes into acquiescing to ever harsher systems of control.

A current description of felony courts must begin with two basic observations: 1) about 90% of people indicted for felony crimes will plead guilty (alternatively, about 10% ask for a jury trial or bench trial); and 2) any defendant who chooses a jury trial over a guilty plea and is convicted can expect a significantly harsher sentence than if he or she had pled guilty. Although this “trial penalty” accounted for only about one-third of the length of a prison term imposed in the past, today the magnitude of the trial penalty is stunningly high. In serious felony cases, a sentence imposed after trial, controlling for offense type, prior record, and other legal and extra-legal factors, will often be over 5 times more severe than the expected sentence for the same offense after a guilty plea (McCoy 2003). Although other aspects of contemporary criminal courts are also of grave concern – the bail/jail system and paucity of intermediate sentencing options spring to mind – at the heart of criminal adjudication is the power placed in prosecutors and judges to review each case on its merits and sentence defendants appropriately. Plea bargaining, as currently practiced in American criminal courts, has perverted that power.

Using as an example the history of the criminal courts of Middlesex County, Massachusetts in the years 1780-1900, Fisher explains how the seeds of the plea bargaining system were sown and how they have grown. In the final chapter of the book he demonstrates how the basic structure set into place by these historic developments has culminated in the coercive regime of contemporary guilty plea procedures under the federal sentencing guidelines. His observations about contemporary practice would also apply to the various states; the controlling assumptions in federal system are simply asserted openly.

It may be that this work goes too far in claiming generalizability. Fisher looked at dockets and records of 4,000 cases in one Massachusetts jurisdiction, though he “dissected the individual details” of only a few dozen. When categorized by offense type over a century, the number of cases is too small for statistical analysis; thus one can question whether the inferences he draws are fully supported. But other data help explain the patterns he observes. These included reports on legislative hearings about plea bargaining, changes in the law and commentary on it, and the personal papers of prosecutors and judges (including a discovery of the first pre-printed indictment form!). However, even if the description of Middlesex County is exhaustive, can it be said that the experience of this one community is typical? Apparently, yes. After a thorough explanation of how plea bargaining triumphed in this court, Fisher eventually turned to other jurisdictions in “Explaining Plea Bargaining’s Progress Elsewhere” (Chapter 7). He reports that the court dynamics producing this apparently aberrant but soon completely typical sentencing device in Massachusetts were observable nationwide at the end of the colonial period through the nineteenth century, so plea bargaining had become firmly “normalized” in criminal courts by the twentieth century.

Why? Caseload! This is the usual explanation that any layman would give, but social scientists have taken pains to discredit it, preferring instead explanations involving courtroom dynamics and workgroup interactions (Heumann 1977) that produce a “going rate” of punishment (Sudnow 1965) or political developments such as the need to control unruly immigrant populations (Vogel 1999), or response to macro-political pressures on courts (McConville and Mirsky, 1986-1987; Ferdinand 1992). The caseload/social forces debate is important, because the caseload explanation usually leads to a defeatist attitude about the possibilities of court reform (how COULD we possibly try all those cases?), while a “going rate” analysis offers hope for change from within the court workgroup itself or from wider social changes.

In the popular and economic understanding of plea bargaining, these debates seem airy. Avoiding the costs of trials is obviously efficient for an overburdened court system, and the popular view (and that of economists) is that judges trade lenient sentences for lower court costs. Fisher shows how caseload pressure on judges increased through the late nineteenth century, and he says it came not from criminal adjudication but from the burgeoning civil caseload of newly-invented tort remedies for industrial accidents. His finding that caseload was the original impetus for plea bargaining does not explain why it “triumphed;” however, in his description of how the practice spread to become norm, Fisher offers a nuanced explanation for the effects of caseload that is more convincing than the blunt economics version.

“We are unlikely to find the root causes of so court-focused a practice anywhere outside the courtroom,” he says (p.11). The history of Middlesex County criminal prosecutions confirms this, and here is where the work speaks directly to our contemporary situation. The first plea bargains occurred in prosecution of victimless crime (liquor-selling violations) under mandatory sentencing laws. Critics of today’s sentencing practices in the drug war will not be surprised. (Fisher says that modern “sentencing guidelines have recast whole chunks of the criminal code in the mold of the old Massachusetts liquor laws.”) In a detailed account of how a fixed-penalty sentencing scheme allowed an overburdened prosecutor to arrange non-judicial outcomes for charges of dispensing liquor illegally in the 1780s-early 1800s, Fisher could be describing how plea bargaining works under mandatory drug sentencing today. The Middlesex County prosecutor devised a system whereby multiple charges for selling liquor without a license would be dropped to one charge, to which defendants would plead nollo contendere and be sentenced to a pre-determined fine and court costs. Prosecutors could control the entire process, an urge that Fisher calls “an almost primordial instinct of the prosecutorial soul” (p.23). Judges were barely involved, fines and court costs were paid, and nobody got hurt. Later, in the 1840s, a successor district attorney charged liquor violations with only a single count to which defendants would plead guilty, with an understanding that the judge would probably impose the previously-established typical punishment for that crime. Even without explicit deals, the guilty plea rate did not drop. In sum, the system evolved from a situation in which all criminal cases went to trial, to explicit plea bargains, to implicit plea bargains, in only forty years. The trial penalty emerged as well; if a defendant insisted on his innocence but was convicted after trial, prosecutors doubled the court costs.

But wait! Here we see the operation of the “going rate” that scholars of plea bargaining have maintained is more important than economics. But Fisher says these “normal punishments” developed in the first instance because prosecutors could not handle the heavy caseload thrust on them. That caseload, incidentally, was caused not by a rise in crime or crackdowns on liquor illegalities, but by population growth not matched by increased court resources, by chaotic funding of public prosecutors and, in Massachusetts, by a brief period in which even the state office of attorney general was eliminated, leaving local prosecutors to handle all cases at all levels of severity. Legislators were at first alarmed by plea bargaining, and Fisher documents a legislative inquiry into the practice of disposing of cases “at the pleasure of the prosecuting officer...[and]...The Court has no right to interfere.” When the prosecutor explained that he had invented a form of “probation” in which defendants who had not contended the charges promised to mend their ways, not get into trouble after paying their fines, and subject themselves to monitoring and subsequently more severe penalties if they were convicted again, the legislators were completely convinced and reported only praise for the new system. Fisher lays bare the connection between the supposedly gentle system of probation and its use as a way for prosecutors to gain control over the disposition of lower-level criminal adjudication, and later in the text he explores the development of the probation system as the logical servant to plea bargaining under indeterminate sentencing.

By the 1800s in Middlesex County, plea bargaining had “triumphed as a systemic regime” under mandatory sentencing statutes for liquor law violations but also for murder. The mandatory penalty for homicide was death, but prosecutors allowed defendants to plead guilty to different charges that allowed them to serve a sentence. In 1848, the legislature graded homicides into degrees, and charge bargaining was reinforced. The district attorney embraced the discretion to reduce charges carrying the death penalty to those carrying mandatory life sentences. A chilling parallel to contemporary practice is found in Fisher’s description of lawyers’ personal interests in the process—when more defendants came to court represented by lawyers, the trial rate was high and plea bargaining was correspondingly low, but prosecutors had an incentive to convince defendants to plead guilty because the prosecutors were usually part-time public employees with fulltime private law practices. The more they plea bargained, the more time they had to spend on the private cases that earned them a living. Trials represented a loss of money to them personally. The legislature would not pay for the costs of capital prosecutions, so the default position was to get defendants to plead guilty to lesser charges. The serious problem of adequate counsel in capital cases today arises in the context of adequate defense rather than prosecution; however, Fisher’s observation that the roots of plea bargaining and its chilling effect on due process are to be found in similar “court-centered” practices (and their funding) is quite probably correct.

Judges are the unexplained variable in all this, and the question that nags the reader throughout the book is “why did the judiciary allow itself to become irrelevant?” In 1800, 71% of all felony offenses ended in plea bargains in which prosecutors accepted nollo prosequi pleas, placed the cases “on file” and the defendants “on probation,” and judge never even saw the charges, much less the evidence. The legislature struck back, stating that the prosecutor could use this procedure “only with the concurrence of the court.” The guilty plea rate plummeted to 26% in 1834 and stayed there until 1879, after which it rose precipitously. Judges had reasserted their power to examine the evidence and sentence offenders, but relinquished it again in the 1870s.

Why? After all, judges did not have an interest in avoiding trials, since they were well-paid fulltime employees. Unlike prosecutors, judges did not regard a high conviction rate (more easily achieved with a high guilty plea rate) as a victory to be publicized, and judges regarded their power to pass sentence as a high professional duty requiring judgment and wisdom – a duty that plea bargaining would undermine. Furthermore, a judge’s job, to determine the exact facts of the crime and of the defendant’s involvement, was virtually eliminated if the prosecutor charge bargained to a certain guilty plea without a trial.

Nevertheless, the trial rate plummeted and guilty pleas rose. This was due not to judicial laxity but to an 1866 change in a rule of evidence intended to give defendants more rights at trial, permitting defendants to testify in their own defenses at trial. Paradoxically, this meant that defendants had less advantage in court, because if they did not testify, the jury drew unfavorable inferences. If the defendant had a prior record, it was even worse. There was no prohibition against commenting on silence or impeaching with priors; although, even if there had been, jurors came to expect defendant testimony. Fisher convincingly demonstrates that the leap in the guilty plea rate probably represented that proportion of defendants who would not testify, for whatever reason. The defendant “generally throws up his hands and stolidly takes his medicine,” as a district attorney said at the time (p.107). Faced with this development, judges were unable to prevent their power from migrating to prosecutors.

At that point, a normalization process took hold. By 1900, the guilty plea rate was 87%, and there is no explanation beyond the fact that judges had fully embraced sentencing bargaining. At the same time, the trial penalty widened until the difference in sentencing severity between cases with guilty pleas versus those that ended in trial convictions was 200-300%. Judges were willing to relinquish their traditional role as champions of the jury trial, evidentiary testing, and judicially-controlled sentencing because they were swamped with civil trials and, more importantly in my opinion, because a new paradigm of criminal punishment had taken hold. Fisher says that the new rehabilitative regime replaced the trial-centered paradigm. If prosecutors slowly gained control over the guilt phase of the criminal process, judges did not resist because new actors in the justice system assured them that defendants would be justly punished. Probation officers could provide judges with facts about the defendant and the crime in lieu of obtaining the facts from trial proceedings. And for the thoughtful and painstaking judge who agonized that this information might still be too thin to allow fully-informed judicial sentencing, a parole board could later correct any mistakes. Judicial pride was not affronted because judges still controlled sentencing—at least in form.

Judges agreed to this guilty-plea-driven system, according to Fisher “because they could.” “Overworked judges of the last quarter of the century turned to plea bargaining for relief from their out-of-control civil caseloads, because they had far greater power to coerce pleas on the criminal side than to induce settlements on the civil side” (p.123). Fisher might have developed the idea further in the context of the new rehabilitative paradigm—that is, a principled judge could not admit to himself that this was coercion, even though it was based on a significant trial penalty. He could rationalize it by the ideology of rehabilitation, with the possibility that a parole board would mitigate any outrageous trial penalty, and convince himself that a guilty plea deserved a lower sentence because it demonstrated that the defendant was remorseful and ready to be rehabilitated. Today, in an era when determinate guidelines and mandatory sentencing has eclipsed the indeterminate model, judges still offer this atavistic excuse for the trial penalty. Fisher says that “plea bargaining drew sustenance from the PRINCIPLES of the indeterminate sentence. For even as the true indeterminate sentence fell to history’s dust heap, the concept survived in corrupted forms, and its theoretical underpinnings proved more lasting than the institution itself” (p.127).

At this point, one might quibble with the implications of this research for the theoretical debates about plea bargaining. Fisher has placed himself squarely on the “caseload pressure” side of the scholarly debates. But in its description of how judges at first embraced the rehabilitative ideal and later resisted it, this work shows that the roots of plea bargaining are found not only in courts themselves but in “macro political” movements, such as the shift in the paradigm of criminal punishment. Perhaps it is too much to say that plea bargaining arose from waves of immigration or the rise of professional police and prosecutors, but at least it is fair to say that Fisher’s work depicts judges and prosecutors absorbing the conditions of their larger political environments and reacting to them in the context of caseload-heavy courts.

Chapter 8 traces judges’ growing resistance to indeterminate sentencing. The rehabilitative regime prevented prosecutors and judges from setting certain punishments in return for guilty pleas, thus eclipsing the certainty necessary to get defendants to plead guilty; furthermore, the lack of certainty diminished the credibility of threats to impose heavier sentences on defendants who lost jury trials. Judges, prosecutors, and defenders worked together to establish “going rates” of determinacy within their own courtroom workgroups, and the way to do this was through plea bargaining.

There was a “multiplicity of mechanisms” other than plea bargaining that turned an indeterminate sentencing system into a determinate one, and the book recounts their dynamics very nicely. The argument becomes very powerful, however, when Fisher sets out his “theory of evolution” (p.200) – what I have called in my more sociologically-oriented language a “process of normalization.” Plea bargaining might have arisen from crowded dockets, an urge to bring determinacy to the indeterminate sentence, a “relationship with probation and public defenders,” and the like, but once the plea bargaining system was in place, it took on a life of its own. Judges and prosecutors had carved out their own domains of power over criminal convictions, and united they fought for the continuation of the plea bargaining “regime.” Moreover, once courts had come to rely on a 90% guilty plea rate, funding for more jury trials was unlikely, especially since it was the plea-bargaining-consumed judges and prosecutors who would be expected to argue vigorously for the money.

I have said that this marvelously detailed and court-centered explanation of the politics of plea bargaining speaks directly to the contemporary situation in criminal courts. That the trial penalty is coercive, that mandatory sentencing is a tool of class domination, that the federal sentencing guidelines are profoundly pro-prosecution and anti-due process, are all ideas with which even people who do not subscribe to social control theory can agree—though perhaps not in such forceful language! Fisher concludes his book by simply stating that “plea bargaining has won.” But he does offer a glimmer of hope for creative development of an alternative to both plea bargains and jury trials, the bench trial (see Chapter 9). He explains why the device has not grown in the current system where plea bargaining has triumphed, but that is history. There may be ways to shape the future if self-interested court professionals find reasons to challenge plea bargaining’s stranglehold on the criminal courts.

REFERENCES:

Ferdinand, Theodore. 1992. BOSTON’S LOWER CRIMINAL COURTS, 1814-1850. Newark: University of Delaware Press.

Heumann, Milton. 1977. PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS. Boston: G.K. Hall.

McConnell, Michael and Chester L. Mirsky. 1995. “The Rise of Guilty Pleas: New York, 1800-1865,” 22 JOURNAL OF LAW AND SOCIETY 443.

McCoy, Candace. 2003. “Bargaining in the Shadow of the Hammer: The Trial Penalty in the USA,” in Douglas Koski (ed.), THE CRIMINAL JURY TRIAL IN AMERICA. Raleigh: Carolina Academic Press.

Sudnow, David. 1965. “Normal Crimes: Sociological Features of the Penal Code in the Public Defender’s Office,” 12 SOCIAL PROBLEMS 255.

Vogel, Mary Elizabeth. 1999. “The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860,” 33 LAW AND SOCIETY REVIEW 161.

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