For the Defense - Vol. 6, Issue 2 - 28

Bargained Justice:
Plea Bargaining and the Psychology
of False Pleas and False Testimony
Lucian E. Dervan
P
lea bargaining is an institution that has come
to dominate the American criminal justice
system. So dominant is plea bargaining
today that many assume it has always been this
way. Take for example the Justice Minister of a
country considering the adoption of a formal
plea-bargaining system in 2016 who was said
to have observed that " the principle of plea
bargaining was a time-honoured common-law
tradition. " That sounds reasonable given that
almost 98 percent of federal convictions and
approximately 95 percent of state convictions
are the result of a plea of guilty. But it is not
true.
The roots of modern plea bargaining are
found, not in the ancient common law of
England, but in the nineteenth century courts
of America. Plea bargaining as we know it
today first appeared in some limited fashion
28 For The Defense l Vol. 6, Issue 2
around the time of the American Civil War. At
this point, however, given strong English and
American precedent prohibiting the practice,
bargains that were reviewed on appeal were
struck down with regularity. But that did not
stop the rise of bargained justice from within
the trenches of the criminal justice system.
By the turn of the twentieth century, the
concept of bargaining for sentences was gaining
popularity for two reasons. First, bargaining was
a part of a corrupt system that existed during this
period as prosecutors and judges began selling
reduced sentences. Second, and more important
to the long-term evolution of plea bargaining as
it exists today, the early twentieth century saw
America begin its unhappy embrace of overcriminalization.
The number of prosecutions
under the Prohibition Act alone, which was
terminated in 1930, were equal to eight times

For the Defense - Vol. 6, Issue 2

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