“Plea Bargaining Abolitionism: A History”

The title of this post is the title of this new piece authored by William Ortman now available via SSRN. Here is its abstract:

How does a tragedy on the scale of mass incarceration happen?  Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more.  On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered.  It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor.  Plea bargaining enabled mass incarceration.  If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.

Except that they — we — were warned.  In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining.  While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.

Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process.  Perhaps predictably, the broader legal profession didn’t heed the warning.  When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them.  And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.