Guilty Plea: Plea Bargaining

Guilty pleas have been regarded as a sufficient basis for conviction from the earliest days of the common law. In treating a guilty plea as conclusive, common law nations depart from the law of most nations on the European Continent. In serious cases, these nations do not treat any form of confession as an adequate basis for dispensing with trial (although trials are likely to be simpler and to focus mostly on sentencing issues when defendants do not contest their guilt).

Compared to the long Anglo-American history of guilty pleas, the history of plea bargaining seems relatively short. The criminal justice system long has rewarded some forms of cooperation by defendants—notably, cooperation in procuring the conviction of other alleged offenders. Nevertheless, only occasional instances of plea bargaining have been discovered prior to the nineteenth century. For example, scholars who have studied eighteenth-century felony prosecutions in the Old Bailey in London report no sign of plea bargaining. To the contrary, the judges of the Old Bailey urged defendants who offered to plead guilty to reconsider and stand trial.

Although plea bargaining in felony cases before the nineteenth century was rare, nontrial dispositions in minor misdemeanor cases may have been the subject of express or implicit bargains. A misdemeanor court could permit a plea of nolo contendere, which allowed a defendant to submit to conviction and pay a fine without admitting guilt. Judges, however, did not allow nolo pleas in serious cases, and in early nineteenth-century America, guilty pleas typically accounted for a minority of felony convictions. When occasional cases of plea bargaining began to appear in reported decisions in the second half of the century, appellate judges voiced strong disapproval of the practice. Despite this disapproval, plea bargaining became routine in many places before the end of the century. Plea bargaining remained a low-visibility activity, however, until crime commission studies in the 1920s revealed how extensive it had become.

Among the historical developments that may have contributed to the growth of plea bargaining were (1) the increasing complexity of the trial process (which may have led to the greater use of nontrial procedures both for economic reasons and because officials sought to avoid the "technicalities" of trial); (2) expansion of the substantive criminal law (particularly the enactment of liquor-prohibition statutes); (3) increasing crime rates; (4) larger case loads; (5) the frequent political corruption of urban criminal courts at and after the turn of the twentieth century; (6) the greater use of professionals in the administration of criminal justice (police, prosecutors, and defense attorneys); and (7) the increasing statutory power of prosecutors.