Ortman on Plea Bargaining from the 1920s to the 1960s

William Ortman, Wayne State University School of Law, has posted When Plea Bargaining Became Normal, which is forthcoming in 2020 in the Boston University Law Review:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice. The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

--Dan Ernst