Plea bargaining is finally coming to be recognized for the important institution it is. There is a rapidly growing body of research that describes its variations, reports on its impact, and discusses its implications. Despite these advances, however, much of this literature is fragmented, anchored in separate disciplines, and often lacking in broad context and historical perspective. And although much of the empirical research on plea bargaining has a distinct reform orientation or offers important implications for reform, this is often implicit or presented in a way that is neither convincing nor useful to practitioners.

For most of the history of the common law, Anglo-American courts did not encourage guilty pleas but actively discouraged them. Plea bargaining emerged as a significant practice only after the American Civil War, and it generally met with strong disapproval on the part of appellate courts. This practice nevertheless became a dominant method of resolving criminal cases at the end of the nineteenth century and beginning of the twentieth, and it attracted significant attention and criticism as a result of crime commission studies in the 1920s. In recent years, American criminal courts have become even more dependent on the guilty plea, but the good press that plea bargaining currently enjoys in legal and social science circles is a very recent development. This article explores changes in guilty plea practices and in attitudes toward the guilty plea from the Middle Ages to the present.

This paper, using mostly data drawn from a study of the criminal work of the Superior Court of Alameda County, California, from 1880 on, explores the history of plea bargaining. Plea bargaining, it turns out, was used in Alameda County from at least 1880, though it was by no means as common in the late 19th century as it is today. There is also ample evidence of “implicit plea bargaining,” that is, pleading guilty in expectation of a lighter sentence. The data from this study suggest that plea bargaining cannot be explained simply as a reaction to crowded court conditions. It is connected with structural and social changes in criminal justice, in particular, the rise of professional police and prosecutors.

As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing.

Plea bargaining apparently arose independently in a number of urban criminal courts in the nineteenth century. These simultaneous developments were presumably related to a number of broad structural changes that characterized American criminal justice at the time. Chief among them were the creation of urban police departments for the arrest of criminals and the development of a prison system for punishment or rehabilitation. Other developments included the reduced role of the victim, the relative independence of criminal justice from legal norms, and the corruption and political manipulation of the criminal justice system. The paper explores ways that such developments may have provided the context for the institutionalization of plea bargaining as a method of case disposition.

In this paper, some recent findings about the nature of plea negotiation in the Birmingham Crown Court in England are discussed. These findings, to which the legal profession in England reacted with hostility, raise doubts about traditionally accepted assumptions concerning the role of plea bargaining in English criminal justice.

Many routine criminal cases in central Europe are concluded by an abbreviated process known as the penal order. The penal order is a written proposal by the state to a defendant stipulating the crime committed and the penalty to be levied if the defendant does not object. This paper describes the West German version of the penal order and argues that it avoids some of the negative practices allegedly inherent in American plea bargaining.

The reasons for the termination of plea negotiation in El Paso County, Texas, are explained. The statistical consequences of doing so are discussed.

A field experiment in Dade County, Florida, evaluated the use of a pretrial settlement conference as a means of restructuring plea negotiations. All negotiations took place in front of a judge and victim, defendant, and arresting police officer were invited to attend. The conferences were brief but generally reached at least an outline of a settlement. They usually included at least one lay party although lay attendance rates were quite low. The change in the structure reduced the time involved in processing cases by lowering the information and decisionmaking costs to the judges and attorneys. No significant changes were observed in the settlement rate or in the imposition of criminal sanctions. There was some evidence that police and victims who attended the sessions obtained more information and developed more positive attitudes about the way their cases were handled.

Plea bargaining was banned by Alaska's Attorney General in August of 1975. The ban extended to all crimes, and forbade both charge and sentence negotiations. Its effects, evaluated by the Alaska Judicial Council in a two-year study, were to increase some sentences, increase trials modestly, and—surprisingly—increase the productivity of the criminal justice system. Explicit plea bargaining appears to have been substantially reduced, without any noticeable commensurate increase in implicit bargaining. The Alaska experience strongly suggests the need to reexamine contemporary thinking about plea bargaining.

Because the literature on plea bargaining disagrees about a definition of the concept, many differences in findings and opinions are more semantic than substantive. The concept of plea bargaining should not be restricted to either pleas or bargains. The fundamental phenomenon is the state's use of coercion to obtain the legal grounds for imposing a penalty.

Increasing concern about the substantial discretion accorded prosecutors in plea negotiations and judges in sentencing decisions has led to a number of proposals to curtail both. In this paper, we assess the consequences of an attempt, simultaneously, to abolish plea bargaining and introduce mandatory sentencing. The Wayne County (Detroit) Prosecutor prohibited his subordinates from plea bargaining in any case in which a recently enacted state statute warranted a mandatory sentence. This statute imposed an additional two-year prison term if a defendant possessed a firearm while committing a felony. Using qualitative data collected from interviews with judges, prosecutors, and defense attorneys, and quantitative disposition data for the six-month periods before and after the law went into effect, we describe the effects of the new statute on dispositions in Detroit. Though there is some evidence that the law and the prohibition on plea bargaining may have selectively increased severity of sentences for certain classes of defendants, for the most part disposition patterns did not appear to have been altered dramatically. In many serious cases, sentences for the primary felony were adjusted downward to take into account the additional two-year penalty; in “equity” cases, in which defendants had not previously received prison time, other mechanisms, such as abbreviated bench trials, were often employed to circumvent the mandatory sentencing provision.

On the basis of a case study of a U.S. Attorney's office, I sketch differences in the prosecution of white-collar and common crime in order to draw out implications for equality in current proposals to reform plea bargaining. The extent to which the powers of investigation and prosecution are empirically distinct differs with the two categories of crime. Because of greater social distance between prosecutor and investigator in the enforcement of laws against common crimes, formal records give a misleading impression that legitimate prosecutorial power is being bargained away. Because there is relatively little social distance between the prosecutorial and investigative functions in the prosecution of white-collar crime, the formal record greatly underrepresents the exercise of the power not to prosecute. Reforms that would make bargaining over formal dispositions more consistent with legality or “due” process appear likely to discourage lenience in the prosecution of common crimes while leaving largely unaffected the low visibility exercise of the power not to prosecute white-collar crime.

The simple logic of plea bargaining is so compelling that it is now often taken for granted, with the result that its value as an explanation is diminished. Differences among a host of distinct practices may be obscured or ignored when they are lumped together under this single term. This comment examines the practice of pleading guilty to petty offenses in lower courts and questions some of the long-standing assumptions about the dynamics of that process. It shows that though plea bargaining of the classical type rarely occurs, the term itself and certain aspects of bargaining continue to serve important symbolic functions.

This paper explores the use of different types of sentence bargaining tactics in ten federal district courts. We distinguish between proactive and reactive prosecutorial orientation, and hypothesize that proactive prosecution of upperworld crime is associated with more explicit sentence bargaining than is the reactive prosecution of underworld crime. We present evidence for and explanations of this relationship.

The trial judge's role in plea bargaining is examined, using national survey data supplemented by observations and interviews. We analyze the frequency with which judges participate in plea discussions and the organizational, social, and legal contexts that affect the judicial role. Our data suggest the trial judge is often an important or crucial actor in the construction of plea agreements, a finding that contradicts much of the legal and social science literature. Several variables directly influence what role a judge will adopt, including self-perceived skill at negotiating and whether the state has a court rule or case law prohibiting or discouraging judicial participation. Future research should focus upon the impact of judicial participation in plea bargaining.

The strongest critics of plea bargaining argue that the practice should be abolished because it coerces defendants to give up their right to trial and because it results in irrational sentences for criminal defendants. Neither charge is applicable to a system of plea negotiations that meets four basic criteria: (1) the defendant always has the alternative of a jury trial at which both verdict and sentence are determined solely on the merits; (2) the defendant is represented throughout negotiations by competent counsel; (3) both defense and prosecution have equal access to relevant evidence; and (4) both possess sufficient resources to take a case to trial. The most fruitful direction of reform is to seek to achieve these conditions rather than attempt to eliminate plea bargaining.