20 Pages Posted: 21 Oct 2004
George Fisher's new book, Plea Bargaining's Triumph, reviews the rise of plea bargaining in Middlesex County, Massachusetts, compares it with the history of plea bargaining elsewhere, and applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors.
Academics have already written many histories of plea bargaining, but this one is different, because Fisher brings an ex-prosecutor's perspective to bear. He adds an important dimension to the history of plea bargaining precisely because he looks at it with a prosecutor's eye. Instead of resting on broader social explanations of plea bargaining, Fisher emphasizes the caseloads, incentives, and powers of judges and prosecutors. His prosecutor's eye sees the actors' powers and incentives from a rational-actor perspective that purely academic historians often miss. He rehabilitates the role of caseload pressure in explaining bargaining's rise and explains how the explosion of civil cases encouraged judges to lighten their workloads by bargaining away their criminal cases.
The lesson of Fisher's history is that plea bargaining has triumphed because it has endeared itself to the actors with real power: judges, prosecutors, defense lawyers, and defendants all like it. Thus, plea bargaining is here to stay. Rather than writing more articles that treat jury trials as the norm, we should focus on making bargaining fairer. The way to do that is to check and balance prosecutors' charging and sentencing power, to create a true balance of bargaining power.
Keywords: Plea bargains, bargaining, plea, fisher, criminal procedure, legal history
JEL Classification: K14, K40, K41
Suggested Citation: Suggested Citation
Bibas, Stephanos, Pleas' Progress. Michigan Law Review, Vol. 102, 2004. Available at SSRN: https://ssrn.com/abstract=585778