Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining

Abstract

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process. Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.

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