Article Plea Bargaining's Triumph George Fishert CONTENTS 1. LIQUOR LAWS, MURDER CASES, AND THE PROSECUTOR'S CHARGING POWER ........................................................................... 868 A. Charge Bargaining in Liquor Cases ....................................... 868 B. Charge Bargainingin Murder Cases...................................... 885 II. THE PROSECUTOR'S MOTIVES IN PLEA BARGAINING ...................... 893 A. Why Plea Bargain at All? The Role of Caseload Pressure..... 893 B. Why Plea Bargain in Liquor Cases?....................................... 904 C. Competing Theories ................................................................ 916 1. The Role of Absent Victims and Savvy Defendants........ 916 2. A Culturaland PoliticalApproach ................................ 919 IIl. ON-FILE PLEA BARGAINING AND THE RISE OF PROBATION ............ 936 A. The Prosecutor'sPowers and On-File Plea Bargaining........ 943 1. The Power To Protect Defendantsfrom Judicial Severity........................................................................... 943 ' Professor, Stanford Law School. Many people have helped me get hold of the records and documents that support this study. I would like to thank in particular Bill Milhomme, Michael Comeau, Janis Duffy, and the reference staff of the Massachusetts Archives; Mike Haire and John Reardon of the records management team at the Massachusetts Trial Court: Andrew Gurthet and Dave Bridgman of the Stanford Law School Library; and many and able research assistants- Blake Hurst, Tami Swiger, Alexis Hailer, Dan Levin. Josh Greenberg. and Tyler Fuller in California, and Phil Coppinger in Boston. For their guidance and insights, I would like to thank Al Alschuler, Dick CraswelL Ted Ferdinand, Lawrence Friedman, Tom Green, Tom Grey, Don Herzog, Adam Hirsch, Marc Miller, Chet Mirsky, Bill Simon, Avi Soifer, Mary Vogel. Lloyd Weinreb, and Bob Weisberg. Craig Estes gave me indispensable help managing the case database. And Maritza Okata, James Sing, David Lam, and the staff of The Yale Law Journal have edited with insight and precision. The Yale Law Journal [Vol. 109: 857 2. The Prosecutor'sPower To ProtectHimselffrom JudicialLeniency ........................................................... 951 B. Probation'sBase-Born Status ................................................. 957 IV. THE DEFENDANT'S POWER To PLEAD ............................................. 965 A. The Power of Representation.................................................. 966 B. The Impact of Defendant-Testimony Laws .............................. 977 V. JUDGES AND THE POWER To SENTENCE .......................................... 984 A. Incentives: The Judges' CaseloadPressure ........................... 989 B. Principles:The Effects of Probationand Parole.................. 1001 C. Pride: The Plea-WithdrawalRule ......................................... 1007 VI. EXPLAINING PLEA BARGAINING'S PROGRESS ELSEWHERE ........... 1016 A. Plea Bargaining'sAbsence in Earlier Times ........................ 1017 B. Plea Bargaining'sRise Elsewhere in America ..................... 1024 1. California..................................................................... 1025 2. New York ...................................................................... 103 1 VII. THE POWER OF PLEA BARGAINING ................................................ 1038 A. The Sources of Plea Bargaining'sPower ............................. 1038 B. The Consequences of Plea Bargaining'sPower ................... 1044 1. The Indeterminate Sentence .................................... 1044 2. Public Defenders .......................................................... 1057 C. Principlesof ProceduralChange ......................................... 1063 VIII. THE BALANCE OF POWER To PLEA BARGAIN ............................... 1067 APPENDIX A: A NOTE ON THE CASES .................................................... 1076 A. The Records and Where To Find Them ................................ 1076 B. Counting Cases and StatisticalProtocols ............................. 1080 APPENDIX B: FERDINAND'S CATEGORY OF" VICE OR REGULATORY O FFENSES"..................................................................................... 1084 2000] Plea Bargaining's Triumph There is no glory in plea bargaining. In place of a noble clash for truth, plea bargaining gives us a skulking truce. Opposing lawyers shrink from battle, and the jury's empty box signals the system's disappointment. But though its victory merits no fanfare, plea bargaining has triumphed. Bloodlessly and clandestinely, it has swept across the penal landscape and driven our vanquished jury into small pockets of resistance. Plea bargaining may be, as some chroniclers claim, the invading barbarian. But it has won all the same. The battle has been lost for some time. It was lost at least by the time prominent observers of the 1920s first lamented our "vanishing jury," and in some places it was lost decades before then. In the years since the jury succumbed in a war few knew it was waging, advancing waves of who-lost- the-jury scholarship have tried to retrace the path of defeat. Much of this work has charged that the ever-weightier burden of modem jury trials overbore the system, which surrendered to the plea bargain's efficiency to avert collapse. Another, newer collection of studies looks beyond the courtroom to spy out broader social forces that aided plea bargaining's cause. But in the breadth of its scope, this work overlooks the first principle of conflict: that victory goes to the powerful. And so while we can find many worthy accounts of why the jury fell, we must ask as well why plea bargaining triumphed. Like most of history's victors, plea bargaining won in great part because it served the interests of the powerful. In the battlefield of the criminal courts, the kind of power that mattered most was the authority to dictate sentences, which judges held in great measure and prosecutors in a compromised but still substantial way. To track the course of plea bargaining's rise, we must discover how prosecutors, who had an almost inherent interest in plea bargaining, secured the power to make it happen, and why judges, who inherently had the power to make it happen, began to see it as in their interest. In this account of plea bargaining's rise, legislators will play a large role, for their power to allocate sentencing authority between prosecutor and judge tilted the terms of battle. And criminal defendants, who held a nominally absolute power to plead or not to plead but who often found themselves hopelessly undefended, must play a real if complicated part. This is not, then, a "social history" of plea bargaining's rise, if by that we mean a story that highlights the play of social forces and minimizes the role of human actors. Although recent scholars have put forth appealing accounts of the electoral pressure of new immigrants or the analogical force of new industry in the creation of "assembly-line justice," these theories either stand without evidence or fall beside the point. Plea bargaining's triumph was manifestly the work of those courtroom actors who stood to gain from it. To the extent that external actors, especially legislators, played The Yale Law Journal [Vol. 109: 857 a conscious role in the struggle, they mainly took sides with the ultimately defeated jury trial. And to the extent that broader social forces, such as immigration and industrialization, influenced the outcome of the conflict, they did so by increasing the criminal caseload on the one hand and the civil caseload on the other, thereby altering the interests and options of prosecutors and judges. And yet in one striking way, the story of plea bargaining's rise is bigger than the actors who made it happen. Plea bargaining, once it took hold, possessed a power of its own. That power derived ultimately from the individual power of those whose interests plea bargaining served, but in its collective form that power made plea bargaining a dominant force in the evolution of modern American criminal procedure. Sometimes, plea bargaining's influence appears on the face of the historical record. This is most true in the case of probation, one of the most enduring nineteenth- century contributions to our penal mechanisms. I will argue that the birth of probation was in some part, and perhaps in large part, the work of prosecutors who sought a new way to expand their power to bargain for pleas. Once in place, probation grew in symbiosis with plea bargaining and became in time one of the most useful tools of lawyers cutting deals. Plea bargaining's role in shaping other procedural institutions appears more subtly in the historical record. But the unmistakable correlation between those procedural changes that have survived and thrived and those that aided plea bargaining's cause compels a conclusion that plea bargaining has so fast a grip on our institutions of justice that antagonistic institutions cannot survive. The demise of the indeterminate sentence, one of the most promising of the late nineteenth century's progressive brainchildren, bears the mark of plea bargaining's malice. A true indeterminate sentence, in which only prison officials and parole boards could set the length of criminal sentences, would have stripped both judges and prosecutors of the power to bargain over the length of terms and would have hobbled the plea-bargaining regime. But though widely promoted, true indeterminate sentences never emerged, and even