PLEA BARGAINING AND ITS HISTORY

• NCJ Number: 59835
• Journal: Columbia Law Review Volume: 79 Issue: 1 Dated: (JANUARY 1979) Pages: 1-43
• Author(s): A W ALSCHULER
• Date Published: 1979
• Length: 43 pages
• Corporate Author: Columbia University
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America
• Note: EARLIER VERSION OF THIS ARTICLE WAS PRESENTED TO A SPECIAL NATIONAL WORKSHOP ON PLEA BARGAINING HELD IN FRENCH LICK (IN), JUNE 14-17, 1978

Annotation

AN HISTORICAL EXAMINATION OF PLEA BARGAINING CONCLUDES THAT THIS DEVICE WAS ESSENTIALLY UNKNOWN UNTIL THE END OF THE 19TH CENTURY AND THAT THEREFORE ITS DEFENSE ON HISTORICAL GROUNDS IS INACCURATE.

Abstract

PLEA BARGAINING IS DEFINED AS THE EXCHANGE OF OFFICIAL CONCESSIONS FOR A DEFENDANT'S ACT OF SELF-CONVICTION. ALTHOUGH DOCUMENTATION IS INCOMPLETE, ANALYSIS OF PAST COURT CASES INDICATES THAT JUDICIAL DISCOURAGEMENT OF CONFESSIONS, LACK OF COUNSEL FOR DEFENDANTS, AND PRESCRIBED PENALTIES FOR FELONIES ALL MILITATED AGAINST PLEA BARGAINING UNTIL AFTER THE U.S. CIVIL WAR. GROWTH OF PLEA BARGAINING FROM 1865 TO THE 1970'S (WHEN ITS USE IS INVOLVED IN ABOUT 90 PERCENT OF CRIMINAL CONVICTIONS) IS TRACED. U.S. CRIMINAL JUSTICE SURVEYS IN THE 1920'S INDICATED GUILTY PLEA PERCENTAGES IN CONVICTIONS RANGING FROM 74 PERCENT TO 90 PERCENT IN MAJOR U.S. CITIES. IN LATER YEARS, THE GROWING PERCENTAGE OF REDUCTION OF CHARGES IN RETURN FOR GUILTY PLEAS INDICATES THAT PROSECUTORS MAY HAVE FOUND IT NECESSARY TO OFFER GREATER CONCESSIONS IN RETURN FOR GUILTY PLEAS. GROWING CASELOADS AND RESULTING ADMINISTRATAIVE PRESSURES MAY FURTHER CONTRIBUTE TO COURTS' CURRENT DEPENDENCE ON THE GUILTY PLEA. SUPREME COURT DECISIONS ON DUE PROCESS AND PLEA BARGAINING LEGALITY HAVE ADDED TO PRESSURES FOR PLEA NEGOTIATION. IT IS CONCLUDED THAT (1) THE GROWTH IN COSTS AND COMPLEXITY OF THE TRIAL PROCESS HAS LED TO THE SYSTEM'S CIRCUMVENTION THROUGH PLEA BARGAINING; AND (2) FACTORS SUCH AS URBANIZATION, INCREASING CRIME RATES, EXPANSION OF SUBSTANTIVE CRIMINAL LAW, AND PAROFESSIONALIZATION AND BUREAUCRATIZATION OF POLICE AND PROSECUTORS HAVE ALSO LED TO THE GROWTH IN PLEA BARGAINING. IN ADDITION, THE 1978 CASE OF BORDENKIRCHER V. HAYES, IN WHICH A DEFENDANT'S REFUSAL TO PLEA BARGAIN LED TO HIS LIFE SENTENCE FOR FORGING AN $88 CHECK, IS CITED AS EVIDENCE OF THE UNDESIRABILITY OF THE PRESENT SITUATION. FOOTNOTES INCLUDE REFERENCES. (CFW)