The ideal of the individualised morality play and personal confrontation lives on in our culture, waiting to be revived in practice. That does not mean we should or even can abolish plea bargaining and lawyers’ leading role in criminal justice; they bring some benefits and are here to stay. But it does mean that we can attack the machinery’s excesses.


IN POPULAR IMAGINATION, criminal justice is a morality play, a form of educational social theatre. As Thurman Arnold put it, “Trials are like the miracle or morality plays of ancient times. They dramatically present the conflicting moral values of a community in a way that could not be done by logical formalisation.” When values conflict, trials help to air and reconcile them; even when the values are settled, as they often are, trials teach and reinforce them. “In its very detail and drama . . . the trial becomes a morality play which impresses upon the public that the law is being enforced and that justice is being fairly administered.” Crime thrillers, movies, and television portray courtroom dramas culminating in jury trials. In some, falsely accused defendants speak their piece and clear their names publicly. In others, victims have their days in court, literally see justice done, and sometimes even receive apologies from those who have wronged them. The jury serves as the chorus of a Greek tragedy, “the conscience of the community.” It applies the community’s moral code, pronounces judgment, and brands or exonerates the defendant. Jury trials sort out who did what, what retribution (payback) wrongdoers deserve, and how to denounce crimes and vindicate victims. Ordinary citizens are key players, as victims and defendants have their say and jurors and the public sit in individualised judgment. They suffer, they make amends and sometimes they even apologise or heal. Viewers evaluate who was right and wrong, empathise with the protagonists and await catharsis and resolution by the end of the show.

Law students think they know better. The vision of criminal justice taught in most law schools emphasises adversarial combat between prosecutors and defence lawyers at trial. On this account, lawyers duke it out over the facts and the law, and their combat separates the innocent from the guilty. Prosecutors seek to maximise convictions and punishment, to deter (scare off) and incapacitate (lock up) as many wrongdoers as possible.

Defence lawyers seek the opposite, to get their clients acquitted or at least the lowest possible sentence. They insist on procedural fairness and rights, questioning whether there is proof beyond a reasonable doubt. Victims are largely absent from this picture, defendants are pushed to invoke their rights to remain silent, and jurors meekly follow judges’ technical instructions. Instead, lawyers run the show.

Newly minted lawyers soon find that the reality in the criminal justice trenches differs from both of these pictures. Unlike the popular imagination, the real world does not have much use for laymen. Victims rarely get to say much in court, certainly not at crucial proceedings such as bail, charging and plea bargaining. Defendants stay silent, letting their lawyers do the talking for them. Discussions of right and wrong, of pain and blame, are almost absent. There is rarely a morality play. Punishment is largely hidden in far-away prisons, out of sight and out of mind.

Book_by_BibasNor do new lawyers find much glamorous trial-lawyer combat in the real world. Indeed, plea bargaining is the name of the game. Many criminal lawyers assume that nearly everyone in the system is guilty and so negotiate settlements instead of fighting it out. Cookie-cutter plea bargains struck in conference calls or hallway conversations resolve most cases, so jurors and the public see few of them. These mass-produced bargains short-circuit elaborate constitutional procedures such as discovery, cross-examination, and jury instructions and deliberation. Lawyers trade defendants’ constitutional rights, such as Miranda warnings and search warrant requirements, as plea-bargaining chips for lower sentences. Some relevant factors, such as the badness of the crime and the defendant and the strength of the evidence, do influence plea bargains. But so do irrelevant factors such as the prosecutor’s and defence lawyer’s salaries and caseloads and the defendant’s ability to afford bail. In other words, lawyers seldom seem to vindicate the innocent, defend the Constitution, weigh wrongdoers’ just deserts, reform defendants, or heal victims. About all they do is move the plea-bargaining machinery as quickly and cheaply as possible, which maximises the number of people the system can deter and incapacitate. The machinery of criminal justice, and its need for speed, has taken on a life of its own far removed from what many people expect or want. Efficiency has all but killed the morality play the public craves.

How did this happen in a democracy? After all, most criminal cases are titled something like People of the State of X vs. John Q. Defendant. Prosecutors still prosecute cases in the name of The People and the public is passionately interested in them. How, then, did the criminal justice system become so far removed from The People, who are nominally in charge? How did it become so amoral, hidden, and insulated? And is there anything we can or should do about it?

To some extent, this distance between voters’ interests and public officials’ actions pervades representative government. Insiders’ control of government is a chronic source of friction in a democracy, but the problem is most acute in criminal justice. In other areas of government, rational apathy and faith in expertise lead voters to defer to experts about, say, regulating fungicides or pension plans. 2 (No one would bother to watch reality television about tax auditors or dramas about public housing.) In contrast, many ordinary citizens do not defer to criminal justice experts but show passionate interest in how insiders handle criminal cases. Indeed, public outrage flares when politicians or the media sporadically bring perceived injustices to light.

In addition, the Sixth Amendment to the Constitution guarantees local, public jury trials. In other words, the public has a constitutional right to know about and take part in criminal trials, though in practice plea bargaining subverts those rights. The stakes are high as well: defendants’ lives, liberties and reputations compete with victims’ rights, the public’s security and the law’s expressive and moral messages. Also, crime victims, bystanders and ordinary citizens have few procedural and no substantive legal rights in criminal justice. Judges, police and prosecutors are not constrained by identifiable clients in the ways that, for example, teachers and welfare case workers are. Thus, both the need for and the limits on democratic participation are particularly acute in the criminal arena. Many scholars have written histories of plea bargaining, but that is not my precise focus here. As chapters II and III of The Machinery of Criminal Justice discuss, plea bargaining is part of a larger series of trends that have professionalised and mechanised the criminal justice system so much that it is out of touch with ordinary people’s expectations and desires. Various explanations for these trends are partly true but incomplete. For example, some blame the Warren Court’s creation and expansion of defendants’ constitutional rights. These rights ranged from Miranda warnings, to exclusion of evidence seized without search warrants, to habeas corpus petitions challenging final criminal convictions. These technicalities are often far removed from guilt, so factual guilt and innocence matter somewhat less to cases’ outcomes. And these new rights gave prosecutors additional incentives to plea bargain, in exchange for defendants’ surrendering of their rights. The plea-bargaining machinery, however, long predates the 1950s, and prosecutors were the ones who created it. These new defence rights created new bargaining chips and fuelled prosecutors’ incentives to bargain; these rights may have accelerated the machinery but did not start it.

Others lay the blame at the feet of rising crime and increased caseloads. There is truth to this explanation as well. As courts became busier, they struggled to find faster ways to dispose of their business. Plea bargaining circumvents increasingly formal trials, allowing courts to move more criminal and civil cases. This partial explanation, however, leaves lawyers out of the picture. If victims and defendants were still handling their own cases amidst today’s caseloads, they would not plea bargain in the same way that prosecutors and defence counsel do. Lawyers’ outlooks, interests and lack of accountability to laymen are integral to the mechanical mentality. Rising caseloads do not capture these factors.

Today, many people reflexively view this history as progress, as criminal justice moved from the bloody dark ages of our past to the more rational, enlightened present. The increases in lawyers, procedures and plea bargaining have indisputably brought some benefits: they have increased some safeguards and accommodated staggering caseloads. Without denying these benefits, I want to critique these transformations and expose their overlooked costs. When one takes a few steps back to reflect on these developments, they appear far more troubling and costly. We cannot simply wax nostalgic for a bygone era, as the plea-bargaining machinery is not about to disappear, but we must see the past and present landscape clearly. Criminal justice used to be individualised, moral, transparent and participatory but has become impersonal, amoral, hidden and insulated from the people. It has thus lost some of its popular democratic legitimacy and support. Appreciating what we have lost can inspire reforms to revive these classic values in the modern justice system. Defendants, victims, and communities can play larger roles through grand juries, consultation with prosecutors, rights to be heard in court, restorative justice conferences, and requiring defendants to work to support their families and victims.

The ideal of the individualised morality play and personal confrontation lives on in our culture, waiting to be revived in practice. That does not mean we should or even can abolish plea bargaining and lawyers’ leading role in criminal justice; they bring some benefits and are here to stay. But it does mean that we can attack the machinery’s excesses. That means giving outsiders more information, more voice and more influence; reintroducing key aspects of the redemptive morality play. Instead of remaining outsiders, victims, defendants and ordinary citizens should actively participate as stakeholders alongside insiders.

BibasStephanos Bibas studies the powers and incentives that shape how prosecutors, defence counsel, defendants, and judges behave in the real world of guilty pleas. His 2004 paper, “Plea Bargaining Outside the Shadow of Trial” (Harvard Law Review), explored the agency costs, structural forces and psychological biases that cause plea bargaining to deviate from expected trial outcomes. His new book (The Machinery of Criminal Justice, Oxford 2012) explains how criminal justice should do more to encourage acceptance of responsibility, remorse, apology and forgiveness.