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1979
Understanding the Short History of Plea Bargaining Understanding the Short History of Plea Bargaining
John H. Langbein
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John H. Langbein, "Understanding the Short History of Plea Bargaining," 13 Law and Society Review 261
(1979).
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UNDERSTANDING
THE
SHORT
HISTORY
OF
PLEA
BARGAINING
JOHN
H.
LANGBEIN
As
late
as
the
eighteenth
century,
ordinary
jury trial
at
common
law
was
a
judge-dominated,
lawyer-free
procedure
conducted
so
rap-
idly
that
plea
bargaining
was
unnecessary.
Thereafter,
the
rise
of
ad-
versary
procedure
and
the
law
of
evidence
injected
vast
complexity
into
jury
trial
and
made
it
unworkable
as
a
routine
dispositive
proce-
dure.
A
variety
of
factors,
some
quite
fortuitous,
inclined
nineteenth-
century
common
law
procedure
to
channel
the
mounting
caseload
into
nontrial
plea
bargaining
procedure
rather
than
to
refine
its
trial
proce-
dure
as
contemporary
Continental
legal
systems
were
doing.
Alschuler
(supra)
has
undertaken
to
document
that
plea
bargaining
was
unkno~vn
during
most
of
the
history
of
the
com-
mon
law.
Only
in
the
nineteenth
century
does
he
find
signifi-
cant
evidence
of
the
practice
in
either
England
or
America.
These
findings
beckon
to
the
legal
historian
for
explanation.
In
modern
times,
plea
bargaining
has
become
the
primary
proce-
dure
through
which
we
dispose
of
the
vast
proportion
of
cases
of
serious
crime.
How
then
could
common
law
procedure
func-
tion
for
so
many
centuries
without'
a
practice
that
is
today
so
prevalent
and
seemingly
so
indispensable?
I.
WHAT
IS
PLEA
BARGAINING?
In
aid
of
historical
inquiry
it
will
be
convenient
to
empha-
size
some
essential
features
of
the
modern
plea
bargaining
sys-
tem.
(1)
Plea
bargaining
is
a
nontrial
mode
of
procedure.
(2)
This
nontrial
procedure
subverts
the
design
of
our
Constitution,
which
provides
that
"[in
all
criminal
prosecu-
tions,
the
accused
shall
enjoy
the
right
to
.
. .
trial
. ..
by
an
impartial
jury
...
"
(U.S.
Const.
amend.
VI,
emphasis
sup-
plied)
.2
(3)
In
order
to
displace
the
constitutional
design
and
sub-
stitute
our
nontrial
procedure
for
the
trial
procedure
envisaged
by
the
framers,
we
make
it
costly
for
a
criminal
accused
to
Suggestions
and
references
supplied
by
Albert
Alschuler
(Colorado),
Thomas
Green
(Michigan),
Norval
Morris
(Chicago),
William
Nelson
(Yale),
and
Franklin
Zimring
(Chicago)
are
gratefully
acknowledged.
I
But
see
the
discussion
in
note
11,
infra.
2
In
Duncan
v.
Louisiana
the
Supreme
Court
held
"that
the Fourteenth
Amendment
guarantees
a
right
of
jury
trial
in
all
criminal
cases
which-were
they
to
be
tried
in
a
federal
court-would
come
within
the
Sixth
Amendment's
guarantee"
(391
U.S.
145,
149,
1968).
HeinOnline -- 13 Law & Soc'y Rev. 261 1978-1979
262
13
LAW
&
SOCIETY
/
WINTER
1979
claim
his
constitutional
right.
When
an
accused
is
convicted
following
jury
trial,
we
customarily
punish
him
twice:
once
for
the
crime,
and
then
more
severely
for
"enjoy[ing]
the
right
to
•
..
trial.
.
.
by
an
impartial
jury.
. .
."
We
rely
upon
the
de-
terrent
effect
of
that
practice
to
dissuade
other
defendants
from
claiming
their
right
to
jury
trial.
(4)
This
nontrial
procedure
has
serious
drawbacks.
In
particular,
the
accused
cannot
present
defenses
and
have
his
guilt
proved
to
a
jury
beyond
a
reasonable
doubt-his
greatest
safeguard
against
mistaken
conviction.
(5)
Nevertheless,
on
account
of
its
efficiency,
plea
bar-
gaining
has
won
the
endorsement
of
the
Supreme
Court
as
"an
essential
component
of
the
administration
of
justice"
(Santobello
v.
New
York,
404
U.S.
257,
260,
1971).
Chief
Justice
Burger
explained
there
that
plea
bargaining
"is
to
be
en-
couraged"
because
"[i]f
every
criminal
charge
were
subjected
to
a
full-scale
trial,
the
States
and
the
Federal
Government
would
need
to
multiply
by
many
times
the
number
of
judges
and
court
facilities."
II.
NONADVERSARIAL
JURY
TRIAL
The
main
historical
explanation
for
the
want
of
plea
bar-
gaining
in
former
centuries
is,
I
believe,
simple
and
incon-
trovertible.
When
we
turn
back
to
the
period
before
the
middle
of
the
eighteenth
century,
we
find
that
common
law
trial
proce-
dure
exhibited
a
degree
of
efficiency
that
we
now
expect
only
of
our
nontrial
procedure.
Jury
trial
was
a
summary
proceed-
ing.
Over
the
intervening
two
centuries
the
rise
of
the
adver-
sary
system
and
the
related
development
of
the
law
of
evidence
has
caused
common
law
jury
trial
to
undergo
a
profound
trans-
formation,
robbing
it
of
the
wondrous
efficiency
that
had
char-
acterized
it
for
so
many
centuries.
The
initial
point
to
grasp,
and
then
to
explain,
is
how
rap-
idly
jury
trials
were
conducted.
The
surviving
sources
show
that
well
into
the
eighteenth
century
when
the
Old
Bailey
sat,
it
tried
between
twelve
and
twenty
felony
cases
per
day
(Langbein,
1978:277),
and
provincial
assizes
operated
with
simi-
lar
dispatch
(Beattie,
1977:165).
Indeed,
it
was
not
until
1794
that
a
trial
"ever
lasted
for
more
than
one
day,
and
[in
that
case]
the
court
seriously
considered
whether
it had
any
power
to
adjourn.
...
"3
3
Mackinnon
(1933:307)
referring
to
R.
v.
Thomas
Hardy
(24
St.
Tr.
19,
1794).
Mackinnon
is
speaking
only
of
common
law
trials;
some
Parliamentary
HeinOnline -- 13 Law & Soc'y Rev. 262 1978-1979
LANGBEIN
263
How
could
the
Old
Bailey
of
the
1730s
process
a
dozen
and
more
cases
to
full
jury
trial
in
one
day,
whereas
in
modern
times
the
average
jury
trial
requires
several
days
of
court
time?
4
(1)
The
most
important
factor
that
expedited
jury
trial
was
the
want
of
counsel.
Neither
prosecution
nor
defense
was
represented
in
ordinary
criminal
trials.
The
accused
was
for-
bidden
counsel;
the
prosecution
might
be
conducted
by
a
law-
yer,
but
in
practice
virtually
never
was.
The
victim
or
other
complaining
witness,
sometimes
aided
by
the
lay
constable
and
the
lay
justice
of
the
peace,
performed
the
role
we
now
assign
to
the
public
prosecutor,
gathering
evidence
and
presenting
it
at
trial.
5
As
a
result,
jury
trial
was
not
yet
protracted
by
the
motions,
maneuvers,
and
speeches
of
counsel
that
afflict
the
modern
trial.
(2)
There
was,
for
example,
no
voir
dire
of
prospective
ju-
rors
conducted
by
counsel.
In
practice
the
accused
took
the
jury
as
he
found
it
and
virtually
never
employed
his
challenge
rights.
Indeed,
at
the
Old
Bailey
only
two
twelve-man
jury
panels
were
used
to
discharge
the
entire
caseload
of
as
many
as
a
hundred
felony
trials
in a
few
days.
Each
jury
usually
heard
several
unrelated
cases
before
deliberating
on
any.
Often
the
juries
rendered
verdicts
in
these
cases
of
life
and
death
"at
the
bar,"
that
is,
so
rapidly
that
they
did
not
even
re-
tire
from
the
courtroom
to
deliberate
(Langbein,
1978:280,
284;
cf.
Beattie,
1977:174).
(3)
The
most
efficient
testimonial
resource
available
to
a
criminal
court
is
almost
always
the
criminal
defendant.
He
has,
after
all,
been
close
enough
to
the
events
to
get
himself
prose-
cuted.
In
modern
Anglo-American
procedure
we
have
con-
structed
the
privilege
against
self-incrimination
in
a
way
that
often
encourages
the
accused
to
rely
entirely
upon
the
interme-
diation
of
counsel
and
say
nothing
in
his
own
defense.
But
in
the
period
before
the
accused
had
counsel,
there
could
be
no
and
other
irregular
proceedings
before
1794
lasted
more
than
a
day,
such
as
the
"trial"
of
Charles
I
(4
St.
Tr.
990,
1649).
4
In
the
District
of
Columbia,
the
length
of
the
average felony
trial
in-
creased
from
1.9
days
in
1950
to
2.8
days
in
1965
(President's
Commission
on
Crime
in
the
District
of
Columbia,
1966:263).
A
few
years
later,
the
figure
was
"well
over
three
days"
(Hearings
on
District
of
Columbia
Appropriations,
90th
Cong.,
1st
sess.,
1967)
(statement
of
United
States
Attorney
David
G.
Bress;
figures
include
both
bench
and
jury
trials).
In
Los
Angeles,
the
length
of
the
average
felony
jury
trial
is
said
to
have
increased
from
3.5
days
in
1964
to
7.2
days
in
1968
(San
Francisco
Committee
on
Crime,
1970:1).
(I
am
grateful
to
Professor
Albert
W.
Alschuler
for
supplying
these
references.)
5
This
is
discussed
further
in
the text,
infra:266-67;
cf.
Langbein
(1978:280-
82,
311-13;
1973:315-24).
HeinOnline -- 13 Law & Soc'y Rev. 263 1978-1979
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13
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/
WINTER
1979
practical
distinction
between
his
roles
as
defender
and
as
wit-
ness.
The
accused
spoke
continuously
at
the
trial,
replying
to
prosecution
witnesses
and
giving
his
own
version
of
the
events
(Langbein,
1978:282-84).
(4)
The
presentation
of
evidence
and
the
cross-examina-
tion
of
witnesses
and
accused
took
place
in
a
fashion
that
was
businesslike
but
lacked
the
time-consuming
stiffness
of
a
mod-
ern
adversary
trial,
which
has
strict
rules
of
sequence
and
phase
preclusion.
The
trial
judge
superintended
this
"alterca-
tion"
(Smith,
1583:80)
of
witnesses
and
accused,
occasionally
examining
or
cross-examining,
and
he
exercised
a
broad
power
of
comment
upon
the
evidence
(Langbein,
1978:284,
285-87).
(5)
The
common
law
of
evidence,
which
has
injected
such
vast
complexity
into
modern
criminal
trials,
was
virtually
non-
existent
as
late
as
the
opening
decades
of
the
eighteenth
cen-
tury
(Langbein,
1978:300-6;
cf.
Wigmore,
1908:696).
The
trial
judge
had
an
alternative
system
of
jury
control
that
was
both
swifter
and
surer
than
the
subsequent
resort
to
rules
of
admis-
sibility
and
exclusion.
He
had
unrestricted
powers
of
comment
on
the
merits
of
criminal
cases;
he
could
reject
a
verdict
that
displeased
him
and
require
the
jury
to
deliberate
further;
in-
deed,
until
1670
he could
fine
a
jury
that
persisted
in
acquitting
against
his wishes
(Langbein,
1978:284-300).
(6)
In
an
age
before
professional
police
and
prosecutors,
the
problems
of
controlling
such
officers
and
protecting
the
ac-
cused
from
abuse
of
their
powers
lay
wholly
in
the
future.
The
remarkable
American
exercise
of
attempting
to
substitute
ex-
clusionary
rules
of
evidence
for
a
direct
system
of
discipline
was
not
yet
operating
to
protract
the
criminal
process.
(7)
Finally,
there
was
as
yet
virtually
no
appeal
in
crimi-
nal
cases.
6
Accordingly,
the
familiar
modern
machinations
of
counsel
directed
to
provoking
and
preserving
error
for
appeal
were
unknown.
It
should
surprise
no
one
that
in
a
system
of
trial
as
rough
and
rapid
as
this
there
was
no
particular
pressure
to
develop
nontrial
procedure,
or
otherwise
to
encourage
the
accused
to
waive
his
right
to
jury
trial.
Indeed,
the
sources
reveal
an
oppo-
site
pressure,
which
we
find
confirmed
by
Sir
Matthew
Hale,
a
trial
judge
of
long
experience,
in
his
Pleas
of
the
Crown,
written
in
1670.
He
reports
that
"it
is
usual"
for
the
judge
to
discourage
an
accused
from
pleading
guilty,
and
"to
advise
the
party
to
6
This
explains,
in
part,
the
prominence
of
the
pardon
as
an
alternative
scheme
of
review,
see
Hay
(1975:40-49);
Radzinowicz
(1948:107-37).
HeinOnline -- 13 Law & Soc'y Rev. 264 1978-1979