From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History

Abstract

Despite the general assumption that the gates of the American criminal justice process have always been guarded by public prosecutors, an examination of the case law and social history of criminal prosecution suggests a much more complex transformation of American criminal justice from an eighteenth and early ninteenth century system dominated by private prosecution. In Philadelphia, this system of private prosecution kept most of the power over the disposition of a criminal case in the hands of the private litigants and petty magistrates, generated a highly articulated legal culture, and resulted in relatively few jury trials. The assumption of power by the district attorney during the last third of the nineteenth century emerged from the internal contradictions of this system, but it amounted to a transformation from one form of nontrial descretionary justice to another.