Crime and Punishment in American History - Lawrence M. Friedman [248]
Bench trial was part of the evolution away from “lay” justice, toward more “professional” justice. It is clear why the prosecution might prefer a bench trial. It was cheaper and faster—no fuss about picking a jury, or about admission of evidence. Bench trial was presumably more predictable than a jury trial. The judge was not an automaton, but he was a professional, something the jury most certainly was not. There were fewer risks of surprise. For his part, an unpopular defendant might prefer judge to jury; he might also hope for a “bonus” in the form of a lesser sentence for saving the taxpayers’ money.21 A defendant (or his lawyer) will tote up his chances; if the judge seems a better bet, then this will be the choice.dj
Pleading Guilty
The most serious rival of the jury trial, however, was not the bench trial; rather, it was (and is) the guilty plea. A guilty plea is even better than a confession at ending a case; and the law has always dearly loved confessions. Common law systems have long allowed the defendant to admit guilt and short-circuit the trial. There were always some defendants who did just that; but the percentage grew steadily over the course of the nineteenth century and into the twentieth. Friedman and Percival’s sample of felony cases, from Alameda County, California, 1870—1910, showed, as we have seen, the popularity of guilty pleas: one-third of the defendants pleaded guilty.23
Why was the guilty plea so popular? A few defendants, no doubt, were smitten with remorse; in some instances, the prosecution had such a tight case that the battle seemed hopeless. But most defendants who pleaded guilty, or changed their pleas to guilty, did this because they had, or hoped to have, a deal.
The term plea bargaining as we noted (chapter 11), covers a number of practices. In all of them, defendant “cops a plea”—that is, he makes a deal; he promises to plead guilty, and in exchange the prosecutor or some other official agrees to drop some charges, or allow probation, or knock down a charge (reduce it from, say, murder to manslaughter). As we have seen, plea bargaining can be traced back to the nineteenth century. But there is no doubt about its marvelous career in the twentieth century. In Chicago in 1926, 78.9 percent of the defendants who pleaded guilty were pleading to a lesser offense than the original charge—an almost certain sign of plea bargaining.24
Chicago was no exception. Plea bargaining was common in state after state in the twenties.dk In the federal courts, plea bargaining apparently became standard practice in or around 1916; by the years 1927 through 1930, it had swept everything before it. In the Northern District of California, 93.5 percent of all convictions in non-liquor cases and 98.3 percent of all convictions in liquor cases came from a guilty plea. In Connecticut, too, in a sample of districts, the guilty-plea rate was over 90 percent. The “guilty plea technique,” in the judgment of the American Law Institute, was “responsible for the prompt and efficient disposition of business,” and it was “doubtful if the system could operate without it.”26
Was it worthwhile for defendants? Prosecutors were sometimes callous and overreaching; but most defendants probably did get something out of the bargain. In some places, the carrot was probation. In New York in the twenties, a defendant had twice the chance of a suspended sentence if he pleaded guilty, compared to a defendant who went to trial and lost.27 In Alameda County, in 1909—10, forty-one out of forty-two men put on probation had pleaded guilty.28 No doubt word of this sort of thing got around. And in thousands of other cases, the deal