79 Colum L. Rev. 1 (1979)
Plea Bargaining and Its History; Alschuler, Albert W.

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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