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79 Colum L. Rev. 1 (1979)
Plea Bargaining and Its History

handle is hein.journals/clr79 and id is 17 raw text is: COLUMBIA LAW REVIEW VOL. 79 JANUARY 1979 NO. I Plea Bargaining And Its History Albert W. Alschuler ** I. THE IDEOLOGICAL COMFORTS OF HISTORY One statistic dominates any realistic discussion of criminal justice in America today: roughly ninety percent of the criminal defendants convicted in state and federal courts plead guilty rather than exercise their right to stand trial before a court or jury.' Behind this statistic lies the practice of plea bargaining, in which prosecutors and trial judges offer defendants con- cessions in exchange for their pleas. In seeking the historic origins of this practice, one may be influenced by his opinion of plea bargaining itself. A defender of plea negotiation is likely to be comforted by the thought that the practice has always been with us-a conclusion 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 concept of a bygone golden age in which plea negotiation was unknown, an age from which we departed inadvertently and largely as a result of laziness, bureaucratization, overcriminalization, and economic pressure.2 History does of course bear on current plea bargaining issues. Social scientists who explain plea bargaining in terms of general principles of bureaucratic interraction sometimes offer historical support for their con- clusions,3 and by the same token their theories of courtroom dynamics are often potentially subject to historical refutation. Similarly, the view that plea bargaining is an economic necessity would gain plausibility if one concluded that this shortcut to conviction had been employed for as long *An earlier version of this Article was presented to a Special National Workshop on Plea Bargaining sponsored by the National Institute of Law Enforcement and Criminal Justice of the Law Enforcement Assistance Adininistration. The conference was held in French Lick, Indiana, from June 14 through June 17, 1978. I am grateful to the participants in this conference and to Arthur H. Travers, Jr., James E. Scarboro, John H. Langbein, Mark Hailer, Roger Lane, and Richard L. Abel for valuable suggestions. ** Professor of Law, University of Colorado. A.B. 1962, LL.B. 1965, Harvard University. 1. D. NEWMAN, CoNvIcTIoN: THE DETERMINATION OF GUILT OR INNOCENCE WInHOUT TRIAL 3 (1966). 2. See M. Feeley, The Effect of Heavy Caseloads 23 (unpublished manuscript presented at the Annual Meeting of the American Political Science Association, San Francisco, Cali- fornia, Sept. 5, 1975) (revised version to appear as chapter 8 of Feel~y's book, The Process Is the Punishment, to be published by the Russell Sage Foundation, New York City). 3. See M. HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, 'JnGEs, AND DEFENSE ATroaRNys 28-32, 157 (1978).

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