The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860

Abstract

One striking feature of American courts is the widespread practice of plea bargaining. Paradoxically, the practice rewards precisely those who appear guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American republic. Amid social conflict wrought by industrialization, immigration, and urbanization during the Age of Jackson, politicians acutely realized the potential for revolution in Europe. Local political institutions being spare and fragmentary, the courts stepped forward as agents of the state to promote social order necessary for healthy market functioning, personal security, and economic growth. Plea bargaining arose during the 1830s and 1840s as part of a process of political stabilization and an effort to legitimate institutions of self-rule—accomplishments that were vital to Whig efforts to reconsolidate the political power of Boston's social and economic elite. To this end, the tradition of episodic leniency from British common law was recrafted into a new cultural form—plea bargaining—that drew conflicts into courts while maintaining elite discretion over sentencing policy.