Coercion to Compromise: Plea Bargaining, the Courts, & the Making of Political Authority

Plea bargaining is one of the most striking features of American courts. The vast majority of criminal convictions today are produced through bargained pleas. Often plea bargaining is imagined as a corruption of the court during the post-World War II years, paradoxically rewarding those who appear guilty rather than those claiming innocence. Yet, as Mary Vogel argues in this pathbreaking history, plea bargaining's roots are deeper and more distinctly American than is commonly supposed.

Plea bargaining arose during the 1830s and 1840s as part of this process of political stabilization and an effort to legitimate institutions of self-rule. The tradition of episodic leniency from British common law was recrafted into a new cultural form--plea bargaining--that drew conflicts into the courts while maintaining elite discretion over sentencing policy.

Created during a period of social mobility, plea bargaining presumed that those with much to lose through conviction would embrace individual reform. Today, when many defendants who come before the court have much less in the way of prospects to lose, leniency may be more likely to be regarded with cynicism, as an act of weakness by the state, and plea bargaining may grow more problematic.

Dr. Mary E. Vogel is Reader at King's College London School of Law having received her doctorate from Harvard University and taught previously at the University of Michigan and the University of California at Santa Barbara.