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7 Just. Sys. J. 338 (1982)
Plea Bargaining and the Structure of the Criminal Process

handle is hein.journals/jusj7 and id is 340 raw text is: PLEA BARGAINING AND THE STRUCTURE OF THE CRIMINAL PROCESS* MALCOLM M. FEELEY** This article examines plea bargaining in historical perspective. It argues that plea bargaining and related inducements to plead guilty are not primarily the products of limitations of resources or the drive for organizational efficiency. Rather plea bargaining has its origins in changes in the very structure and theory of the criminal process that have taken place during the past 200 years: developments in the opera- tive assumptions and theory about the criminal process; changes in the substantive criminal law and criminal procedure; and the rise of full-time professionals who administer the criminal process. The thesis is that negotiation has increased in direct proportion to adversariness; that is, the rise of plea bargaining is a conse- quence of increased adversariness, precisely the opposite of what is commonly thought. Introduction As a society we have high expectations for our courts, and when they are not met, as inevitably they will not be, we are disappointed. No doubt dis- appointment serves as an important stimulus for change, but it can also lead to exaggeration and misdiagnosis. An exaggerated sense of urgency can easily lead to misunderstanding and superficial analysis, lacking in perspective and context. In the concern with the practice of plea bargain- ing, something of this distortion has taken place. The result has been, I think, a misunderstanding of both the origins and nature of plea bargain- ing. This in turn has contributed to an inaccurate analysis of the opera- tions of the courts and a downgrading of the magnitude and significance of changes in the adversary process in recent years. In general many so- called improvements, and indeed some of their seeming shortcomings can also be seen as signs of strength. Plea bargaining is one such change.' *This study is part of a project supported by the National Institute of Justice, whose aid is deeply appreciated. * Visiting Professor, School of Law, University of California. 1. By plea bargaining I mean the waiver of the right to trial and the exchange of a guilty plea by the defendant for a promise of more lenient treatment than would be meted out if convicted at trial. Thus, I use the term generically to include several quite different types of bargaining-over the number of counts, the number and types of charges, the length of sentence, and the like. Plea bargaining can also take place at various stages of the pretrial process and involve different officials (e.g., judges are more likely to be involved in sentence bargaining than in charge bargaining) which in turn can significantly affect the nature of this process. But whatever the structure, plea bargaining provides inducements to the accused for waiving their rights to trial or conversely provide threats of enhanced sanctions if they do not. It is this common feature that I wish to address here. I should also THE JUSTICE SYSTEM JOURNAL, Volume 7, Number 3 (1982)

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