Albert W. Alschuler

Plea Bargaining and Its History

For most of the history of the common law, Anglo-American courts did not encourage guilty pleas but actively discouraged them. Plea bargaining emerged as a significant practice only after the American Civil War, and it generally met with strong disapproval on the part of appellate courts. This practice nevertheless became a dominant method of resolving criminal cases at the end of the nineteenth century and beginning of the twentieth, and it attracted significant attention and criticism as a result of crime commission studies in the 1920s. In recent years, American criminal courts have become even more dependent on the guilty plea, but the good press that plea bargaining currently enjoys in legal and social science circles is a very recent development. This article explores changes in guilty plea practices and in attitudes toward the guilty plea from the Middle Ages to the present.

The Privilege Against Self-Incrimination: Its Origins and Development

Preface Abbreviations 1: Introduction R. H. Helmholz 2: The Privilege and the Ius Commune: The Middle Ages to the Seventeenth Century R. H. Helmholz 3: Self-Incrimination in Interjurisdictional Law: The Sixteenth and Seventeenth Centuries Charles M. Gray 4: The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries John H. Langbein 5: The Privilege in British North America: The Colonial Period to the Fifth Amendment Eben Moglen 6: The Modern Privilege: Its Nineteenth-Century Origins Henry E. Smith 7: A Peculiar Privilege in Historical Perspective Albert W. Alschuler Notes Table of Statutes Index

The Failure of Sentencing Guidelines: A Plea for Less Aggregation

To a considerable extent, the Federal Sentencing Guidelines have substituted punishment based on aggregations of similar cases for individualized punishment. This paper argues that the movement from individualized to aggregated sentences has marked a backwards step in the search for just criminal punishment. Some things are worse than sentencing disparity, and we have found them. The paper does not, however, advocate a return to the pre-guidelines system of broad sentencing discretion. Instead, it proposes a less ambitious system of sentencing guidelines?one in which a sen tencing commissions resolution of specific, recurring sentencing issues and of paradigmatic cases would provide benchmarks for sentencing judges. Aggregation?the treatment of many cases all at once?is often appropriate. Indeed, all legal rules aggregate. Treating unlike cases alike sometimes can promote economy and simplicity of administration. The federal sentencing guidelines, however, do not save work or money. To the contrary, 90 percent of the judges who responded to a survey by the Federal Courts Study Committee reported that the guidelines had made sentencing procedures more time consuming. In addition, our overburdened federal appellate courts now decide thousands of cases each year concerning application of the guidelines.2 The principal argument for the sentencing guidelines has not been simplicity or ease of admini stration. It has been that, although aggregated sentences may prove unjust in many cases, guide lines limit the play of judicial personality and inhibit discrimination on invidious grounds. The injustice produced by grouping unlike cases, in other words, has been justified as a means of promoting equality and preventing greater injustice.

Narrative and normativity: Comments on The Origins of Adversary Criminal Trial

For 25 years, John Langbein has written about the development of adversarial criminal procedure, and The Origins of Adversary Criminal Trial is the capstone of his project. This book is a landmark. Nevertheless, the work is less astonishing than it would have been if Langbein had not previously given us the terms ‘accused-speaks trial’, ‘lawyerization’ and ‘testing-theprosecution trial’. The history of the criminal trial in England and America can be told in those three memorable terms. Well, perhaps not the entire history. Origins narrates a richer, more complicated tale than Langbein’s earlier work. Complexity is what happens when one goes as deeply into the sources as Langbein has – both the wealth of recent writing on the early modern criminal trial by John Beattie, Peter King, Allyson May, David Cairns, J. S. Cockburn, Douglas Hay and others, and the important primary materials, especially the Old Bailey Sessions Papers. Langbein was the first historian to use the Sessions Papers for anything more than a passing reference. His recognition of their importance has made his work far more informed than that of his illustrious predecessors James Fitzjames Stephen, John Wigmore, William Holdsworth and Leon Radzinowicz. These historians of criminal procedure and the law of evidence relied largely on the reports of treason and other high-profile trials contained in the State Trials. The Old Bailey Sessions Papers describe trials for serious everyday crime in London’s central criminal court – crimes like murder, rape, robbery, burglary, larceny and forgery. The Sessions Papers were published from 1670 until 1913. Initially, they were journalistic pamphlets featuring sex, violence and intrigue for the public,