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The rise of plea bargaining was surely a significant development, but it has to be understood for what it was. Plea bargaining did not cause hasty, routine, assembly-line justice. That had long existed. “Trials” in many places, and for most defendants, had been quick and dirty affairs, without lawyers and without much of the trappings of due process. In some places in the twentieth century, the quick and dirty trial was hardly extinct. Here is Arthur Train, lawyer and author, and former assistant district attorney, writing in 1906 about felony trials in New York City: “Ordinarily in a full court day there will occur from two to four complete trials, while an equal number of pleas may be taken. Sometimes a hundred and fifty cases will be got rid of by trial or plea in a single term in one part of the General Sessions alone.”29

Train did not regard these trials as unfair. He felt that even ordinary trials for pickpockets or streetcorner brawlers were allotted “plenty of time.” Juries sat for a whole term or session of court, and the district attorney soon found out who were the “anarchists or idiots.” These jurors were then excused and the D.A. could “rely pretty safely on the others rendering a fair verdict.”30 What the pickpockets or streetcorner brawlers thought is not recorded.

It is mainly this sort of “trial” that plea bargaining replaced. Plea bargaining was, after all, more professional. It was quick and it was cheap. It did not depend on the wild, unpredictable notions of twelve men or women off the streets. For routine trials, “bargain justice” became totally standard, in some places, all but universal. dl Only a stubborn handful of cases went to trial.

In the current generation, then, plea bargaining had become a pervasive aspect of the criminal justice system. Pervasive, yes, but for most of the century, fairly invisible, and certainly not the stuff of controversy; its rapid rise was hardly noticed by the general public, or even by high courts and legal scholars. In 1970, in North Carolina v. Alford,32 plea bargaining won a kind of stamp of approval from the U.S. Supreme Court. In any event, it survived constitutional challenge. Alford had been accused of first-degree murder, a charge that put him in the shadow of the gas chamber. He entered a plea of guilty to second-degree murder, but later insisted he was innocent: “I ain’t shot no man, but ... I just pleaded guilty because they said if I didn’t they would gas me for it.” Could he be convicted on this kind of plea—could a man who claimed to be free of guilt be convicted on a plea of guilt, entered out of fear and on a lawyer’s advice? The Supreme Court said yes: a man accused of crime “may voluntarily ... consent to the imposition of a prison sentence even if he is unwilling ... to admit his participation in the ... crime.” In any event, there was “overwhelming” evidence against Alford, the Court felt, and hence his choice was quite sensible.

In 1971, in Santobello v. New York,33 Chief Justice Burger went so far as to call plea bargaining “an essential component of the administration of justice.dm Properly administered, it is to be encouraged.” Why? Because otherwise, the courts would be swamped; plea bargaining is costeffective—it “leads to prompt and largely final disposition of most criminal cases.” Burger was not alone. Quite a few judges, prosecutors, and legal scholars have given at least a qualified nod to the practice.

But despite this fact, and the chief justice’s kind words, plea bargaining became quite controversial in the seventies. The storm of anger and controversy that engulfed the whole criminal justice system did not leave this part of it untouched. The “bleeding-heart” wing of national opinion considered the system barbaric: a defendant’s fate was decided by haggling, not by an honest trial. The “law-and-order” wing felt plea bargaining was defective for exactly the opposite reason: hardened criminals, adept at playing the game, bargained for a “slap on the wrist.” Defendants themselves