Plea Bargaining and Prohibition in the Federal Courts, 1908–1934

Abstract

This article documents and explains the emergence of implicit plea bargaining in the federal district courts during the Progressive and Prohibition periods. Three competing explanations for plea bargaining are tested statistically—the caseload, the substantive justice, and the evidentiary quality arguments. All three receive qualified support. The historical operation of each of these causal paths, however, was shaped by the preoccupation of more elite federal judges with their own professional self-image in the face of Prohibition. Implicit plea bargaining in the federal courts emerged reflexively as an unintended consequence of the failed Progressive assault on the “corrupt” explicit plea bargaining practices of lower state and county courts.