The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine

In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive self-interests and incentives that influence public servants. Salaried prosecutors usually have little reason to invest extra work in any one case, particularly if they are part-time employees who can earn more by getting back to their private clients. Prosecutors are also a politically ambitious bunch who may want to burnish their reputations by winning a few high-profile convictions at trial.

In addition, prosecutors may care about keeping their conviction rates up, trading severity of sentences for certainty in the course of plea bargaining (see below). If they care about racking up conviction statistics, and lack personal stakes in any case, they may lean toward prosecuting easier-to-prove victimless crimes. In a victim-run system, such crimes would be prosecuted only where they at least indirectly affected some victim.

Second, defense lawyers gradually came to stand in for defendants. Back in the eighteenth century, victim and defendant would tell their stories at trial almost in a shouting match, letting juries hear both sides first-hand.

As defense lawyers increasingly entered the picture, however, they advised their clients to let them do the talking. Instead of offering excuses or pleading for mercy, defendants increasingly stood mute. That transformed the trial from a morality play between the protagonist and antagonist into a courtroom duel between professional adversaries. And because those adversaries were professionally trained and repeat players, they developed intricate rules of evidence and procedure, further distracting the trial’s focus from who did what and who deserved what.

But third, those courtroom duels became increasingly rare. The sprouting of technical rules made trials much longer, from minutes to hours and then days. (Today, a good number take weeks or even months.)

During the nineteenth century, courts became increasingly busy with civil (tort) lawsuits over streetcar and railroad accidents, factory injuries, and the like. So prosecutors, defense counsel, and judges alike came to share an interest in clearing their dockets through speedy plea bargaining. And since they were all repeat players, they could develop going rates and market prices for recurring crimes.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

If plea bargaining makes everyone happier and is so efficient, why then does it remain controversial today? That depends on whether one looks at it primarily as a matter of public law or of private (contract) law. The lawyers who negotiate the bargain may all be better off; they efficiently dispose of caseloads and trade off severity of sentences for certainty of more sentences. The lawyers see the process primarily as a contract, a private deal that happens to serve their professional and personal interests as well as their understanding of the public interest.

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

These wildly divergent perspectives on plea bargaining track what I call the great gulf that separates criminal justice insiders from outsiders. The contours of that gulf, and the ways that it harms criminal justice, will be the topic of my next post tomorrow.