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

Published online by Cambridge University Press:  04 July 2014

Malcolm M. Feeley
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Extract

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.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 183 - 222
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

**

School of Law, University of California at Berkeley.

References

1 Moley, Raymond, “The Vanishing Jury Trial”, (1928) 2 So. Calif. L.R. 97 Google Scholar.

2 Heydebrand, Wolf and Seron, Carroll, Technocratic Justice (1987)Google Scholar.

3 Blumberg, Abraham, Criminal Justice (1967)Google Scholar.

4 See, e.g., Alschuler, Albert, “The Prosecutor's Role in Plea Bargaining”, (1968) 36 U. of Chicago L.R. 50 CrossRefGoogle Scholar; Alschuler, Albert, “Plea Bargaining and its History”, (1969) 13 Law and Soc. R. 211 CrossRefGoogle Scholar; and Landsman, Stephen, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England”, (1990) 75 Cornell L.R. 497 Google Scholar.

5 According to various authorities this court was established by a charter from Henry I early in the twelfth century. Beginning in the late middle ages its jurisdiction was roughly equivalent to that of the combined jurisdictions of the crown courts of Quarter Sessions and Assizes, those courts which handled indictable offenses for the rest of England and Wales. When it was established the crown granted the court at The Old Bailey special criminal jurisdiction for the City of London which was later expanded to include Westminster and parts of Middlesex. This special jurisdiction has remained intact for centuries, although functionally The Old Bailey is the equivalent of the courts of assizes in other areas of the country. This distinctiveness is in part accounted for by the idiosyncrasies of English tradition and by the fact that The Old Bailey was the criminal court for one of the most densely populated and crime ridden areas in the country. This in turn is complicated by the fact that the City of London is located at the confluence of several counties (the City of London, Middlesex, Essex, Kent and Surrey). Thus the court is in effect a special district designed to meet a particular problem and circumvent problems of multiple jurisdiction. As a special area-wide court it facilitated handling large numbers of criminal matters, and was in session more-or-less continuously (rather than quarterly or occasionally as were the courts of Quarter Sessions and Assizes). In 1834 the City of London, all of Middlesex County and parts of Essex, Kent and Surrey were designated as a single venue for the purposes of indictments and crime, and The Old Bailey was given a new name, the Central Criminal Court. Still long after 1834 this court continued to be called The Old Bailey, and so we shall use this term in this paper.

The Old Bailey is distinctive for still another reason. Located in inner London it heard more than its share of the country's criminal cases. And as it was near the Inns of Court and Fleet Street, it has had more than its share of attention from lawyers and the press. Those familiar with the modern history of English criminal justice — the developments of a stipendiary magistracy and a professional police force, and the agitation for reform of the criminal law — know that most of these movements were first spawned in metropolitan London. And in the metropolis, the court at Old Bailey was often the object of the critics' wrath and the reformers' good intentions.

These distinctive features make it a good object of focus for our purposes. Its proceedings were documented in its Sessions papers, and because it was the nation's busiest and most well-known criminal court, it anticipated national trends.

6 For other reports on this continuing project and the importance of the expansion of defense counsel, see Feeley, Malcolm M., “Plea Bargaining and the Structure of the Criminal Process”, (1978) 4 Justice System Journal 394 Google Scholar; Feeley, Malcolm M., The Process is the Punishment: Handing Cases in a Lower Criminal Court (1979) 135–152 Google Scholar, and Feeley, Malcolm M. and Lester, Charles, “Legal Complexity and the Transformation of the Criminal Process”, in Gouron, Andre, Mayali, Laurent, Schioppa, Antonio Padoa und Simion, Dieter, eds., Subjektivierung des justiziellen Beweisverfahrens (1994) 337 Google Scholar.

7 Feeley (1978), ibid., at 358.

8 Moley, supra n. 1.

9 See, e.g., Alschuler, supra n. 4.

10 Old Bailey Sessions Papers, Fifth Session, (1918) 298-299.

11 Wontner, Thomas, Old Bailey Experience (1833) 59 Google Scholar.

12 Feeley (1978), supra n. 6, at 344.

13 Langbein, John, “The Criminal Trial Before the Lawyers”, (1978) 45 U. of Chicago L.R. 263 CrossRefGoogle Scholar. See also Langbein, John, “Shaping the Eighteenth Century Trial”, (1983) 50 U. of Chicago L.R. 2 Google Scholar.

14 Bushel's case denied judges the power to fine jurors who brought in verdicts unacceptable to them.

15 Langbein (1978), supra n. 13, at 265.

16 We recognize that the figures in Figure 1 understate the importance of lawyers in the criminal process. From other sources we know that at times they were retained to help victims bring prosecutions and to advise defendants how best to respond, even though they did not appear at trial. And, as we shall see, in cases where defendants plead guilty lawyers may have played a role that was not recorded. Still these figures are useful in providing an indication of the active presence of lawyers in proceedings during the period under consideration.

17 It continued to grow throughout the twentieth century. At The Old Bailey as elsewhere, now trials are the rare exceptions and not the rule.

18 See e.g. Baldwin, John and McConville, Michael, Negotiated Justice: Pressures on Defendants to Plea Guilty (1979) 18 Google Scholar.

19 For a history and description of the many new sentencing laws in the late eighteenth and early nineteenth century, see SirRadzinowicz, Leon, A History of English Criminal Law and its Administration from 1750, vol. 1: The Movement for Reform (1948)Google Scholar.

20 For a discussion of the way in which this is done in contemporary English courts, see Baldwin and McConville, supra n. 18, at 39.

21 Figure 5 shows only the average number of trials per court per day, but it is important to realize that the increase over time is not simply a consequence of the increase in guilty pleas. Until the 1850s virtually no trials lasted longer than half a day. By the end of the century, a substantial portion lasted longer than one day.

22 Blumberg, supra n. 3; Moley, supra n. 1.

23 Langbein (1983), supra n. 13.

24 Fuller, Lon, “The Adversary System”, in Berman, Harold, ed., Talks on American Law (1961) 41 Google Scholar.

25 I experimented with various ways to assign values to each of these indicators. In general, they made little or no difference in the outcome, since all I am trying to do here is to show the general affinity between the growth of the use of adversarial techniques and the decline of the use of the jury trial. Generally, the process I have used is easily understood and intuitively plausible. The presence of attorneys is straightforward. A case with no attorneys would not contribute value to the LCI variable, a case with one attorney would contribute the value 1, and a case with attorneys on both sides would be scored as 2. Thus, the more adversarial the proceedings — along these admittedly limited but nevertheless useful indictors — the higher the value.

The vigor or complexity of both prosecution and defense also posed a challenge since it was possible to construct this variable from diverse factors that had been coded. For instance “indictment dismissed” could indicate highly successful defense or especially weak prosecution. Ultimately we coded such values as “0” and wholly excluded them when creating the LCI indicator with “all controls”. Hence the value of vigor or prosecution is 1, only in those cases where either the defense was cross-examined or evidentiary witnesses were utilized. A value of 3 was given to those cases where: a) evidentiary witnesses and cross-examination were utilized, b) defense witnesses were cross-examined; c) evidentiary witnesses were utilized and defense witnesses were cross examined. Finally, a value of 4 was assigned to those cases where evidentiary witnesses were utilized and both defendant and defense witnesses were cross-examined. This was the fullest utilization of the “adversary process” by the prosecution. A similar rate of values was constructed for vigor of defense according to the criteria set forth below:

Defendant speaks for self 1

Defendant speaks + character witness

Only character witness

Defendant speaks, character witness + evidentiary witness

Defendant silent, character witness 2

Cross-examination

Cross-examination + defendant speaks

Cross-examination + character witnesses

Cross-examination + defendant speaks + character witness 3

Cross-examination + evidentiary witnesses

+ defendant speaks + evidentiary witnesses

Full defense (defense speaks, cross-examination, character + evidentiary witnesses)

“Unknown/unclear/NA”

“no defense indicated” 0

“Defense, admits guilt” + evidentiary witness

Admittedly the breakdown of these categories for both vigor of prosecution and defense is somewhat arbitrary. However the categories do capture general trends and reveal cumulative increases in at least these selected aspects of trial complexity and vigor. Obviously a host of highly subtle factors shaped the development of more vigorous adversarial proceedings and more complex trials. The indicators we have used no doubt only scratch the surface as it were. Nevertheless a systematic presentation of even this surface over time can reveal some basic contours. That is despite their limitations, we do feel that this index does capture certain basic and systematic aspects of vigor and complexity, and hence can be useful in revealing broad patterns. At a minimum it can be viewed as a supplement to anecdotal evidence. Anecdotal evidence can reveal certain significant factors in especially noteworthy cases, for instance when a new procedure was first introduced and the like. But it cannot not so easily be used to show broad patterns in ordinary cases across long periods of time, which is the object of the enterprise here.

Finally we created three other variables, “expert witnesses”, “matters of law”, and “questions of evidence or procedure”. They are all binary; thus a value of “1” was assigned to the index for each one present and a “0” if not.

26 One difficulty with the index is that once all controls are utilized (removing cases where the nature of defense, prosecution, etc. is “unknown”), the number of cases drops substantially in the first year (1687) to four. Further it appears that these four cases were more complex than average. (Among other things, they were described in much greater length in the OBSP than were the vast majority of other cases in that year.) Generally, however, the other sample years contained enough cases to warrant faith in the trend the index reveals.

27 I emphasize the term practice, because I am interested in exploring and explaining changes in practices. In particular, I want to emphasize that while I agree with the leading historians who have located the formative period for formal changes in procedure and evidence in the eighteenth century, as they affected practice, my data suggest that in ordinary criminal cases these changes did not have much impact until the nineteenth century, when lawyers came to be routinely used.

28 Langbein (1983) supra n. 13.

29 For a more detailed discussion of this sample, see Feeley, Malcolm M. and Little, Deborah, “The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912”, (1991) 25 Law and Soc. R. 719 CrossRefGoogle Scholar.