PLEA BARGAINING AND THE ECLIPSE OF THE JURY

The right to criminal jury trial is protected by the U.S. Constitution and the constitutions of all 50 states. In practice, however, roughly 95% of persons convicted of felonies in America waive their right to trial by jury by entering guilty pleas. Most such pleas derive from plea bargaining, whereby defendants plead guilty in exchange for prosecutorial and judicial concessions. Although plea bargaining has generated an extensive scholarly literature, its history, until recently, has remained obscure. This review examines existing legal-historical scholarship on the origins and expansion of plea bargaining in the nineteenth century and explores the range of factors cited by legal historians for plea bargaining's rise. It reveals that plea bargaining was one of several methods employed by Anglo-American criminal justice administrators to dispose of criminal cases without juries. When compared with these other modes of bypassing trial by jury, plea bargaining appears less distinctive—and less distinctively American—than often considered.