Plea Bargaining's Triumph

This article examines how plea bargaining “won,” taking over the majority of criminal adjudications by the later 1800s. It analyzes Middlesex County, Massachusetts, the birthplace of parole and an early advocate for implementing plea bargaining. It begins with one of the earliest recorded clear plea bargains in 1808 for a violation of a liquor law. This case was also one of the first instances where nolle prosequi was used by a prosecutor, accepting a guilty plea for one charge in exchange for dropping the four other charges. This case is seminal in plea bargaining because of the way the liqour laws were drafted. The legislature nearly completely divested judges of their power to sentence and gave almost sole discretion to the prosecutor to determine the fines and punishment that were to be paid by the defendant, meaning that the defendant and prosecutor could agree to a fine before being heard in front of a judge. Evolving from this model, a Massachusetts prosecutor secured a guilty plea for manslaughter in exchange for a dismissal of a murder charge and potential death penalty in 1848. As prosecutors’ office’s caseloads became larger, the legislature expanded jurisdiction of the Court of Common Pleas to all noncapital crimes in an effort to promote efficacy. In response to the growing caseload and more defendants exercising their right to appeal, plea bargaining became more common to mitigate the load and increasing pressure on prosecutors, much to the dismay of the judiciary. The author analyzes and compares various studies and bodies of research relating to the increase and source of plea bargaining’s prevalence. Fisher examines Theodore Ferdinand’s survey of Boston court’s link between liquor law cases and plea bargaining and rejects his theory that absent victims and savvy defendants made liquor law cases a “fertile ground for plea bargaining,” because even murder cases, far from victimless, were active in the early plea bargaining scene. Fisher also rejects scholar Mary Vogel’s theories that case load pressure increasing plea bargaining is a myth and that plea bargaining rose to prominence because the public preferred it. Fisher’s ultimate conclusion is that plea bargaining rose to prominence in the 19th century through prosecutors charge bargaining by use of laws that allowed them to bargain without judicial cooperation.

“Plea bargaining in the early and mid-nineteenth century therefore encountered at least three obstacles to judicial acceptance: It served judges’ needs less well than those of prosecutors; it met in some judges a principled aversion to discharging their awesome duty to sentence without full information; and it offended some judges’ pride of power. As a result, prosecutors could plea bargain only where they could do so on their own, without judicial cooperation – and that meant only in liquor crimes and capital offenses. But as I have said, both Ferdinand and Vogel arrive at different explanations of the early rise of plea bargaining.” p.915-916