| Book Review | Law and History Review, 27.1

Book Review

John H. Langbein, The Origins of Adversary Criminal Trial, Oxford and New York: Oxford University Press, 2003. Pp. xxii + 354. $99.00 cloth (ISBN 0-1992-5888-0); $44.95 paper (ISBN 0-1992-8723-6).

George Fisher, Plea Bargaining's Triumph: A History of Plea Bargaining in America, Stanford: Stanford University Press, 2003. Pp. xi + 397. $65.00 cloth (ISBN 0-8047-4459-9); $26.95 paper (ISBN 0-1992-5888-0).

The criminal trial and the pursuit of truth tend to be linkedif they are linked at allby their perceived incongruity. Yet, as these two books demonstrate, the cynical (or pragmatic or even benign) abandonment of the quest for truth by the Anglo-American criminal courts may have unexpected, and deleterious, consequences. John Langbein's Origins of Adversary Criminal Trial charts the eclipse of a judge-dominated systemwhich was, in the interests of ameliorating the full severity of the capital code, "merely neglectful of the truth"by that of a "lawyer-dominated" trial which was explicitly "truth-defeating" (334). George Fisher's Plea Bargaining's Triumph illustrates the dangers of a regime in which expedience and self-interest dovetail with the system's own need for legitimation (the appearance of truthful verdicts), ultimately resulting in a transferral of power and discretion from those most likely to exercise leniency (judges) to those least likely to do so (prosecutors). Both books deal with major transformations of the Anglo-American criminal process which have their roots in the long eighteenth century; both are persuasive and meticulously researched, delivering messages as powerful as they are timely.

The early eighteenth-century English criminal trial, as outlined by Langbein, was an expeditious, lawyer-free "altercation" between prosecutor-victim and accused: essentially, a "sentencing proceeding" in which the defendant was obliged to speak in his or her defensenot so much to argue the facts of the case as to inform a judge and jury with wide discretionary powers of extenuating circumstances (59). A hundred years later a French observer would describe the English criminal trial judge as "almost a stranger to what is going on," and the accused so silent that "his hat stuck on a pole might without inconvenience be his substitute at his trial"(252). While the 1696 Treason Trials Act granted defense counsel to treason defendants, defense lawyers did not begin to appear in felony trials until the 1730s. Just as the 1696 Act was a reaction against the glaring injustices of the late Stuart treason trials, the appearance of lawyers for the defense at the Old Bailey was spurred by an attempt to redress the abuses inherent in a system of private prosecution, already subject to a "strong prosecutorial bias" (46)including the admission of prosecution, but not defense, counseland exacerbated by a reliance on rewards and the testimony of crown evidences. The shift in Old Bailey practice from the 1730s was, however, "not embodied in legislation" (107)indeed, felony defense counsel was legally prohibited until 1836but rather in ad hoc attempts on the part of individual judges to "even up for the imbalance that had opened up between the crown and the accused." While such judges hoped merely "to make a modest adjustment to trial practice" (254) in order to shore up the old altercation ("the accused speaks") trial, what began as a "piecemeal ... act of grace" would eventually move the power to admit defense counsel out of "judicial discretion as the precedents accreted" (177). The "lawyerization" of the criminal trial was so gradual, "the quality of latency lulled the bench into inaction until the lawyers had become entrenched" (255).

English distrust of the Continental model of public prosecution and investigation would have fateful long-term consequences. The "adversary criminal trial exhibited two striking defects": "the wealth effect," which generally denied skilled counsel to those defendants who most needed it, "the indigent and near-indigent"; and the "combat effect," which effectively silenced the defendant as an "informational resource," thus "permitt[ing] combat to prevail over truth" (12). However, the "truth" solicited in the pre-lawyerized criminal trial related primarily to the character and the past record of the accused. As Douglas Hay and others have pointed out, the discretionary character of this system reinforced deference, whether the criteria by which mercy (in the form of partial verdicts) was dispensed were arbitrary or paternalistic or simply pragmatic. And while paternalism has perhaps a worse press than it deserves (considering the alternatives), Langbein's study is throughout premised on the assumption that the bench was, if not benevolent, then at least best informed and qualified to direct verdicts, and that "lawyerization"by "undercut[ting] the ancient idea that the court could be counsel for the accused" (312) and disrupting the "ancient working relationship between judge and jury" (331)worked to the material disadvantage of defendants, especially poor ones.

John Langbein is perhaps most familiar to several generations of graduate students of social and cultural history as the historiographic villain of that mainstay essay assignment on the eighteenth-century English criminal law, the Hay-King-Langbein-Linebaugh debate. While my own academic career so far has been largely dedicated to the study of those "little crooks" famously dismissed by Langbein in that exchange, his work has been indispensable in terms of my understanding of how the eighteenth-century criminal law actually functioned. Moreover, Langbein's pioneering use of, and insights into, the Old Bailey Sessions Papers first inspired meamong many othersto study this remarkable resource for legal and social and cultural history alike. The Origins is a powerful distillation of many years of research; and while readers of Langbein's earlier work will be familiar with the arguments presented here, it nonetheless reads as a coherent monograph. It is also almost a miracle of clarity and concision, with even the most basic of terms (what a constable is, for instance) explicitly defined in accessible language. Not least, the Origins is a generous and judicious work: scrupulous both in presenting contradictory evidence and in acknowledging intellectual debtsfrom the complementary scholarly work of legal and social historians such as John Beattie, to the smallest references provided by colleagues and students. This is, finally, a beautifully produced book, the text interspersed with numerous illustrations and contemporary prints, many of them previously unpublished.

If George Fisher's Plea Bargaining's Triumph will never be mistaken for a coffee-table book, it too is the culmination of an impressive body of research and argumentation. Here Fisher takes up the story of plea bargaining's origins in Middlesex county, Massachusettsalso, not coincidentally, "the birthplace of probation" (3). Here plea bargaining begins "as a systemic regime" in the early nineteenth century, first taking the shape of charge bargaining in liquor law violations and murder casesin which prosecutors could reduce the number or severity of charges in exchange for guilty pleas. Even after this prosecutorial loophole was closed, prosecutors "kept plea bargaining alive as an underground resistance movement" (86) by putting cases "on file"staying sentences in exchange for guilty or no contest pleas, but retaining the discretion to reactivate the case. By utilizing what was effectively probation, "Massachusetts prosecutors crafted a covert plea-bargaining regime" and "raised up probation as a sibling of plea bargaining and shaped it to do plea bargaining's bidding" (68). While the advantages of plea bargaining to prosecutors were obviousamounting, in Fisher's colorful phrase, to an "almost primordial instinct of the prosecutorial soul" (23)judges had the luxury of retaining a "principled objection to the practice" (56), and the collaboration of the bench was critical in "plea bargaining's triumph." This was achieved in the final quarter of the nineteenth century, when their "exploding civil caseload" induced judgeswho salved their consciences by entrusting some of their discretionary responsibilities to "newly appointed parole boards" and "newly commissioned probation officers" (114)to "cut deals where they could" (129): in criminal cases.

Although plea bargaining's power is indirect, "derived ... by serving well the interests of those ... who hold power in the criminal courtroom" (175), Fisher invests it with an almost diabolical agency, able to "raise up" procedures that serve it, and "beat down" those that "threaten it"(180), turning even liberal legislation to its own sinister purposes. Defendant-testimony laws allowing defendants to testify under oath opened up those who took the stand to cross-examination about prior criminal convictions, while prejudicing jurors against those who refused to do so. Plea bargaining has gained momentum from non-jury trials, largely circumvented due process, and derailed the indeterminate sentence. And recent conservative legislation, the 1987 Guidelines imposing strict sentencing uniformity, serves plea bargaining even better, by giving prosecutors free rein to overcharge suspects while constraining the ability of judges to "undersell sentencing offers" (219).

Fisher persuasively argues that "plea bargaining's triumph was manifestly the work of those courtroom actors who stood to gain from it" (2) and, far from functioning as a means of legitimating the inequities of nascent democratic capitalism (by displays of "episodic leniency"), the practice was opposed by legislators and, "to the degree that it was known, had a very bad press" with the public (148). Yet, as Fisher demonstrates, plea bargaining serves the system so well in part because of its legitimating function: it increases prosecutorial conviction rates and reduces judicial reversals, while filtering from the scrutiny of the "black box of the jury's deliberation room" (or "lie-detector," to borrow one of Fisher's brilliant earlier insights), all but "controversial cases" (180). Fisher's work suggests some interesting avenues for future inquiry, particularly in the area of the civil courts, so important to Fisher as a kind of deus ex machina, and which were, as Langbein points out, "lawyerized" long before the criminal courts, although "trial-avoiding" (7)much like their modern criminal counterpart. Another factor, also treated briefly by Langbein, may shed further light on the question of why plea bargaining emerged so much earlier in America than in England (in addition to the obvious explanations, such as elected prosecution attorneys); that is, the continuing option in English courts, well into the mid-nineteenth century, of transportation.

For all that these two books may not be social or cultural historyFisher, like Langbein, is unabashed in his focus not only on courtroom actors, but the most powerful of these actorsthey are nonetheless brilliant and important studies, and ones that social and cultural historians cannot afford to disregard if they are to understand how the criminal law functioned and evolved from the eighteenth century to the present. They should be read by all students of legal history as well as the general reader interested in understanding both the origins and the enduring, and often ambiguous, legacy of the Anglo-American criminal trial.

Andrea McKenzie

University of Victoria

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