Pleas’ Progress

George Fisher’s new book, Plea Bargaining’s Triumph, is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining’s rise elsewhere. The final part applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors. Academics have already written a number of histories of plea bargaining in Massachusetts and elsewhere, but this one is different. Fisher, a former Middlesex County prosecutor and now a professor at Stanford Law School, brings his prosecutorial perspective to bear in explaining the rise of plea bargaining. I will review Fisher’s book from this same perspective, as both of us are plea-bargaining scholars and former prosecutors rather than professional historians.