torture and plea bargaining

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Torture and Plea BargainingAuthor(s): John H. LangbeinReviewed work(s):Source: The University of Chicago Law Review, Vol. 46, No. 1 (Autumn, 1978), pp. 3-22

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Tortureand Plea Bargaining*John H. Langbeint

In this essay I shall address the modem American system ofplea bargaining from a perspective that must appear bizarre, al-though I hope to persuadeyou that it is illuminating. I am goingtocontrastplea bargainingwith the medievalEuropean awof torture.My thesis is that there are remarkableparallels in origin, in func-tion, and even in specific points of doctrine, between the law oftorture and the law of plea bargaining. I shall suggest that theseparallels expose some important truths about how criminaljusticesystems respondwhen their trial procedures all into deep disorder.

I. THE LAWOFTORTUREIForabout half a millennium, fromthe middle of the thirteenthcenturyto the middle of the eighteenth, a system of judicial torturelay at the heart of Continental criminalprocedure.In ourown daythe very word "torture"is, gladly enough, a debased term. It hascome to mean anything unpleasant, and we hear people speak of atortured interpretation of a poem, or the torture of a dull dinnerparty. In discussions of contemporarycriminal procedurewe hearthe word applied to describe illegal police practices or crowdedprison conditions. But torture as the medieval European lawyersunderstood it had nothing to do with official misconduct or withcriminal sanctions. Rather, the applicationof torturewas a routineand judicially supervised feature of Europeancriminal procedure.Under certain circumstancesthe law permittedthe criminal courts

to employ physical coercionagainst suspected criminalsin ordertoinduce them to confess. The law went to great lengths to limit thistechnique of extorting confessionsto cases in which it was thoughtthat the accused was highly likely to be guilty, and to surround heuse of torturewith other safeguardsthat I shall discuss shortly.This astonishing body of law grew up on the Continent as anadjunct to the law of proof-what we would call the system of

* The William CrosskeyLecture in Legal History, The Universityof ChicagoLawSchool, October19, 1978. Suggestionsand criticisms from Albert Alschuler,Paul Bator,RichardEpstein, ThomasGreen,Emile Karafiol,RichardLempert,NorvalMorris,RichardPosner,GeoffreyStone and Peter Westen are gratefullyacknowledged.t Professorof Law,The Universityof Chicago.' This sectionof this article is baseduponand reproduces omelanguage romJ. LANG-BEIN,TORTUREANDTHELAWOFPROOF:EUROPEANDENGLAND N THEANCIENRIGIME 1-16 (1977).

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The Universityof ChicagoLawReviewtrial-in cases of serious crime (for which the sanction was eitherdeath or severephysicalmaiming2).The medievallawof proofwasdesigned in the thirteenth centuryto replacean earliersystem ofproof,the ordeals,which the Roman Churcheffectivelydestroyedin the year 1215.3The ordeals purportedto achieve absolute cer-tainty in criminaladjudication hrough he happy expedientofhav-ing the judgmentsrenderedby God,whocould not err.The replace-ment system of the thirteenthcentury aspiredto achievethe samelevel of safeguard-absolute certainty-for humanadjudication.Althoughhumanjudges were to replaceGod in the judgmentseat, they wouldbe governedby a law of proofso objectivethat itwould make that dramaticsubstitutionunobjectionable-a law ofproofthat would eliminate human discretion fromthe determina-tion of guilt or innocence.Accordingly, he Italian Glossatorswhodesignedthe system developedand entrenched he rulethat convic-tion had to be based upon the testimony of two unimpeachableeyewitnessesto the gravamenof the crime-evidence that was, inthe famousphrase,"clearas the noondaysun." Withoutthese twoeyewitnesses, a criminal court could not convict an accused whocontested the charges against him. Only if the accusedvoluntarilyconfessedthe offense could the court convict him without the eye-witness testimony.Anotherway to appreciatethe purposeof these rules is to un-derstandtheir corollary:conviction could not be based upon cir-cumstantialevidence,becausecircumstantialevidencedependsforits efficacy upon the subjectivepersuasionof the trier who decideswhetherto drawthe inferenceof guilt fromthe evidenceof circum-stance. Thus, for example, it would not have mattered in this sys-tem that the suspect was seen running away from the murderedman's house and that the bloody daggerand the stolen loot werefound in his possession. Since no eyewitness saw him actuallyplungethe weaponinto the victim, the courtcouldnot convict himof the crime.In the historyof Westerncultureno legal systemhas ever madea morevalianteffort to perfect ts safeguardsandthereby o excludecompletelythe possibilityof mistaken conviction. But the Europe-ans learned in due course the inevitable lesson. They had set thelevel of safeguard oo high. They had constructeda system of proof

2 The use of imprisonmentas a sanction for seriouscrimewas a developmentof theRenaissanceand latertimes. Langbein,TheHistoricalOriginsof the SanctionofImprison-mentforSeriousCrime,5 J. LEGALTUD.5 (1976),substantiallyreproducedn J. LANGBEIN,supranote 1, at 27-44,151-64.3 J. LANGBEIN, upranote 1, at 5-7.

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Tortureand Plea Bargainingthat could as a practical matter be effective only in cases involvingovert crime or repentant criminals. Because society cannot longtolerate a legal system that lacks the capacity to convict unrepen-tant personswho commit clandestine crimes, something had to bedone to extend the system to those cases. The two-eyewitnessrulewas hard to compromiseor evade, but the confession rule seemedto invite the "subterfuge"' hat in fact resulted.To go fromaccept-ing a voluntary confession to coercing a confession from someoneagainst whom there was already strong suspicion was a step thatbegan increasinglyto be taken. The law of torturegrew up to regu-late this processof generatingconfessions.The spirit of safeguard hat had inspiredthe unworkable ormallaw of proofalso permeated the subterfuge.The largest chapter ofthe Europeanlaw of tortureconcernedthe prerequisites orexami-nation under torture. The Europeanjurists devised what Anglo-American lawyers would today call a rule of probable cause, de-signed to assure that only persons highly likely to be guilty wouldbe examined under torture.Thus, torture was permitted only whena so-called "half proof' had been established against the suspect.That meant either one eyewitness, or circumstantial evidence ofsufficientgravity,according o a fairlyelaboratetariff.5 n the exam-ple where a suspect was caught with the daggerand the loot, eachof those indicia would be a quarterproof.Togetherthey cumulatedto a half proof, which was sufficient to permit the authorities todispatch the suspect for a session in the local torture chamber.In this way the prohibition against using circumstantial evi-dence was overcome. The law of torture found a place for circum-stantial evidence, but a nominally subsidiaryplace. Circumstantialevidence was not consulted directly on the ultimate question, guiltor innocence,but on a questionof interlocutoryprocedure-whetheror not to examine the accused under torture. Even there the lawattempted to limit judicial discretion by promulgating predeter-mined, ostensibly objective criteria for evaluating the indicia andassigning them numerical values (quarter proofs, half proofs, andthe like). Vast legal treatises were compiled on this jurisprudenceof tortureto guidethe examining magistratein determiningwhetherthere was probablecause for torture.6

' Maitland's famous term, 2 F. POLLOCK& F.W. MAITLAND,HEHISTORYFENGLISHAW660 (2d ed. 1898).* J. LANGBEIN,upra note 1, at 14.' These works are canvassed in 1 & 2 P. FIORELLI,A TORTURAIUDIZUIAAELDIRITOCOMUNE1953-54).

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The University of Chicago Law Review

CAPVT XXXVIII.D e repetitionequaefionii u e c o r -

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This woodcut from a leading sixteenth-centuryEuropeancriminalproceduremanual shows the accused being examinedunder torturein the presenceof the court, clerk,and courtfunctionaries.The illus-tration, fromJoost Damhouder'sPraxis RerumCriminalium91 (Ant-werped. 1562), appearsin chapter38, which discusses the rules forrepeatingthe infliction of torture on an accused who has previouslyresisted confessiondespite examinationunder torture. (Reproducedwith permissionfrom the rare book collection of The UniversityofChicagoLaw Library.)

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Torture and Plea BargainingIn orderto achieve a verbalortechnical reconciliationwith the

requirementof the formal law of proofthat the confessionbe volun-tary, the medieval lawyerstreated a confessionextractedunder tor-ture as involuntary,hence ineffective, unless the accused repeatedit free fromtortureat a hearingthat was held a day orso later. Oftenenough the accused who had confessed under torture did recantwhen asked to confirmhis confession.But seldom to avail: the ex-amination under torture could thereuponbe repeated. An accusedwho confessed undertorture,recanted, and then found himself tor-tured anew, learnedquickly enoughthat only a "voluntary"confes-sion at the ratificationhearingwould save him from furtheragonyin the torturechamber.7Fortunately, more substantial safeguardswere devised to gov-ern the actual application of torture. These were rules designed toenhance the reliability of the resulting confession. Torturewas notsupposedto be used to elicit an abject, unsubstantiated confessionof guilt. Rather, torture was supposedto be employedin such a waythat the accused would disclose the factual detail of thecrime-information which, in the words of a celebrated Germanstatute, "noinnocent personcan know."8The examining magistratewas forbidden to engage in so-called suggestive questioning, inwhich the examinersupplied the accused with the detail he wantedto hear from him. Moreover, he informationadmittedunder torturewas supposedto be investigated and verifiedto the extent feasible.If the accused confessedto the slaying, he was supposedto be askedwhere he put the dagger.If he said he buried it under the old oaktree, the magistratewas supposed to send someone to dig it up.Alas, these safeguardsnever proved adequate to overcomethebasic flaw in the system. Because torture tests the capacity of theaccused to endurepain ratherthan his veracity, the innocentmight(as one sixteenth-century commentatorput it) yield to "the painand torment and confessthings that they neverdid."9 f the examin-ing magistrate engagedin suggestivequestioning,even accidentally,his lapse could not always be detected or prevented.If the accusedknew something about the crime, but was still innocent of it, whathe did know might be enough to give his confession verisimilitude.

J. LANGBEIN,supra note 1, at 15-16. An accused who resisted any confession undertorturewassupposed o be set free(subjectto rulespermitting urther orture f new evidencewas thereafterdiscovered); t was said that the accused had "purged" he incriminatingevidence when he enduredthe torturewithout confession.Id. at 16.8 ConstitutioCriminalisCarolinaart. 54 (1532),translated n J. LANGBEIN,PROSECUTING

CRIMEIN THERENAISSANCE: NGLAND,GERMANY,FRANCE282 (1974).' J. DAMHOUDER,RACTIQUEUDICIAIRES CAUSES RIMINELLESh. 39, at 44 (Antwerped. 1564) (first edition published as PRAXISRERUMRIMINALIUMLouvain 1554)).

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The University of Chicago Law ReviewIn some jurisdictionsthe requirementof verification was not en-forced,or was enforced ndifferently.

These shortcomings n the law of torture were identifiedevenin the Middle Ages and werethe subjectof emphatic complaintinRenaissanceand earlymoder times. In the eighteenthcentury,asthe law of torturewas finally about to be abolishedalongwith thesystem of proofthat had required t, Beccariaand Voltairebecamefamousas critics of judicial torture,but they were latecomersto acritical legal literature nearly as old as the law of torture itself.Judicial torturesurvivedthe centuriesnot because its defects hadbeen concealed,but in spite of theirhavingbeenlongrevealed.Thetwo-eyewitnessrule had left Europeancriminalprocedurewithouta tolerablealternative. Having entrenchedthis unattainable levelof safeguardin their formaltrial procedure, he Europeansfoundthemselvesobligedto evade it througha subterfuge hat they knewwas defective. The coercedconfessionhad to replaceproofof guilt.II. THELAWOFPLEABARGANING

I am nowgoingto crossthe centuries and cross the Atlantic inorderto speak of the rise of plea bargaining n twentieth-centuryAmerica.The descriptionof the European aw of torturethat I havejustpresentedhas been meant to stir amongAmericanreadersan un-pleasant sensationof the familiar. The parallelsbetweenthe mod-ern Americanplea bargainingsystem and the ancient system ofjudicial torture are many and chilling. I have lived with them forsomeyearsnow,and the least that I hopeto achievein this essay isto unburdenmyselfsomewhatby sharingthe disturbingvisionthatI think would come to any Americanwho had spent time studyingthe European aw of torture.By wayofpreface, et me set forthbrieflysomeof the rudimentsof our plea bargaining system. Plea bargainingoccurs when theprosecutor nduces a criminal accusedto confessguilt and to waivehis right to trial in exchangefor a morelenient criminalsanctionthan would be imposed if the accused wereadjudicatedguilty fol-lowingtrial. The prosecutoroffers leniency either directly, in theform of a chargereduction,orindirectly,through he connivanceofthe judge, in the form of a recommendation or reducedsentencethat the judge will follow. In exchangefor procuring his leniencyfor the accused, the prosecutor s relievedof the need to provetheaccused'sguilt, and the courtis sparedhavingto adjudicate t. Thecourt condemns the accusedon the basis of his confession,withoutindependent adjudication.

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Tortureand Plea BargainingPlea bargainingis, therefore,a nontrial procedurefor convict-ing and condemning people accused of serious crime. If you turn to

the AmericanConstitution in search of authorityfor plea bargain-ing, you will look in vain. Instead, you will find-in no less halloweda place than the Bill of Rights-an opposite guarantee,a guaranteeof trial. The Sixth Amendment provides:"In all criminal prosecu-tions, the accused shall enjoy the right to . . . trial . . . by animpartialjury . . . ."0In our day, jurytrial continuesto occupyits centralplace bothin the formallaw and in the mythologyof the law. The constitutionshave not changed, the courts pretend to enforce the defendant'sright to jury trial, and the television transmits a steady flow ofdramasin which a courtroomcontest forthe verdictof the juryleadsinexorably to the disclosure of the true culprit. In truth, criminaljury trial has largely disappearedin America. The criminaljusticesystem now disposes of virtually all cases of serious crime throughplea bargaining.Depending on the jurisdiction,as many as 99 per-cent of all felony convictions are by plea." This nontrialprocedurehas become the ordinarydispositive procedureof American law.

Why? Whyhas our formalsystem of proofandtrial been set outof force? What has happened in the intervalof less than two centu-ries between the constitutionalizationof jury trial in 1791and thepresentday to substitute this nontrialsystem forthe trial procedureenvisaged by the Framers?Scholars are only beginningto investi-gate the historyof plea bargaining,'2 but enoughis known to permitus to speak with some confidence about the broad outline. In thetwo centuries from the mid-eighteenthto the mid-twentieth, a vasttransformationovercame the Anglo-American13nstitutionof crimi-nal jury trial, rendering it absolutely unworkable as an ordinarydispositive procedureand requiringthe developmentof an altema-

" U.S. CONST. mend.VI (emphasisadded)."The figure of 99 percent is given for Detroit in J. BOND,PLEABARGAININGNDGUILTYPLEAS 13 (1975).ProfessorAlschulerreports95 percentforHoustonin 1975.Alschuler,TheTrialJudge's Role in Plea Bargaining pt. I), 76 COLUM.. REV.1059,1063 n.20 (1976).InNew York in 1971, 97 percent of felony convictions were by plea. See VERA NSTITUnTFJUSTICE,ELONY RRESTS:HEIRPROSECUTIONNDDISPOSITIONNNEWYORKCrrY'sCOURTs(1977).In a largestatisticalstudyof New YorkCity felonydata aboutto be published,HansZeisel computesthat 98 percentof convictionswere obtainedby plea. H. ZEISEL, HE ANAT-OMYOFLAWENFORCEMENThs. 4, 12, 28 (1979) (forthcoming).2 See Alschuler,PleaBargainingand its History,13LAW&Soc'YREV.1979)(forthcom-ing); Friedman, Plea Bargaining in Historical Perspective,id. (forthcoming);Langbein,Understandinghe ShortHistory of Plea Bargaining, d. (forthcoming).

'1 On the extent of plea bargainingn England,see Baldwin&McConville,SentencingProblemsRaisedby GuiltyPleas: AnAnalysisof NegotiatedPleasin theBirminghamCrownCourt,41 MOD.L. REV. 44,545 n.3 (1978).

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The Universityof ChicagoLaw Reviewtive procedure,which we now recognizeto be the plea bargainingsystem.

In eighteenth-centuryEngland jury trial was still a summaryproceeding.14In the OldBailey in the 1730swe knowthat the courtroutinelyprocessedbetweentwelveand twenty jurytrialsforfelonyin a single day. A single jury wouldbe impaneledand would hearevidence in numerous unrelated cases beforeretiringto formulateverdicts in all. Lawyerswere not employedin the conductof ordi-nary criminaltrials, either for the prosecutionor the defense. Thetrialjudge called the witnesses(whomthe localjusticeof the peacehad boundover to appear),andthe proceeding ranspiredas a rela-tively unstructured "altercation"between the witnesses and theaccused.'5 In the 1790s, when the Americans were constitution-alizingEnglishjurytrial, it was still rapidand efficient. "Thetrialof Hardyforhightreasonin 1794wasthe firstthat everlastedmorethan one day, and the courtseriouslyconsideredwhether t hadanypowerto adjourn . ."'16By contrast,we may note that the trialof Patricia Hearst for bank robbery n 1976 lasted forty days'7andthat the average elony jurytrial in LosAngeles n 1968required7.2days of trial time.'8In the eighteenthcenturythe most characteris-tic (andtime-consuming) eaturesof modern urytrial, namelyad-versaryprocedureand the exclusionaryrulesof the law of criminalevidence, were still primitiveand uncharacteristic.The accused'sright to representationby retained counsel was not generalizedtoall felonies until the end of the eighteenth centuryin Americaandthe nineteenthcenturyin England."9 ppellatereviewwas veryre-

4 See generally Langbein, The Criminal Trial before the Lawyers, 45 U. Cm. L. REV.263 (1978).15See id. at 272-84. The word "altercation" is the famous term of Sir Thomas Smith. T.SMITH,DE REPUBLICANGLORUM0 (London 1583)." MacKinnon, The Law and the Lawyers, in 2 JOHNSON'SNGLAND87, 307 (A.S. Tur-berville ed. 1933) (referringto Rex v. Hardy, 24 St. Tr. 199 (1794))."7 1976] ADMINISTRATIVEFFICE FTHEUNITEDTATES OURTSNN.REP.335.'s The figure for Los Angeles appears in SANFRANCISCOOMMITTEENCRIME, REPORTON THE CRIMINALCOURTSOF SAN FRANCISCO,ARTI: THE SUPERIORCOURTBACK-LOG-CONSEQUENCESAND REMEDIES1 (1970). (I am grateful to Professor Albert W. Alschulerfor the reference.) Of course, this figure must reflect the diversion of most easy cases into non-jury-trial channels such as plea bargaining, bench trial, and conditional nonprosecution.Reliable figures for New Jersey criminal trials conducted in 1976-77 (bench and jury) are lessspectacular, although they hardly detract from the contrast with eighteenth-century trialduration figures. Only five percent of the trials lasted more than five days, whereas 49 percentlasted from one to three days, 35 percent less than a day, and 11 percent from three to fivedays. ADMINISTRATIVEIRECTORFTHECOURTS,TATEOFNEWJERSEY, NN.REP.1976-1977,at F-2 (1978). (I owe this reference to ProfessorJerome Israel.)" U.S. CONST.amend. VI (1791); 6 & 7 Will. IV, ch. 114 (1836). For the Americancolonies, see the valuable compilation in the appendix to Note, An Historical Argument for

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1978] Torture and Plea Bargaining 11stricted into the twentieth century;counselforindigentaccused wasnot requireduntil the middle of this century.The practicesthat soprotractmodernAmericanjurytrial-extended voirdire,exclusion-ary rules and other evidentiary barriers,motions designed to pro-voke and preserve issues for appeal, maneuvers and speeches ofcounsel-all are late growths in the long history of common lawcriminal procedure.20Nobody should be surprisedthat jurytrial has undergonegreatchanges over the last two centuries. It desperatelyneeded reform.The level of safeguardagainst mistaken conviction was in severalrespectsbelow what civilized peoplesnowrequire.Whatwe will notunderstand until there has been research directed to the questionis why the pressureforgreater safeguard ed in the Anglo-Americanprocedureto the law of evidence and the lawyerizationof the trial,reformsthat ultimately destroyedthe system in the sense that theymade jury trial so complicated and time-consumingthat they ren-dered it unworkableas the routine dispositive procedure.21imilarpressuresforsafeguardwerebeingfelt on the Continentin the sameperiod, but they led to reforms in nonadversarialprocedurethatpreservedthe institution of trial.22the Right to Counsel During Police Interrogation, 73 YALEL.J. 1000, 1055-57 (1964).0 The latter portion of this paragraph is derived from Langbein, Controlling Prosecu-torial Discretion in Germany, 41 U. Cm. L. REV.439, 445-46 (1974).

21 In isolating the transformation of jury trial as the root cause of plea bargaining, we donot mean to imply that this procedural development is the sole cause of a practice so complex.When the history of plea bargaining is ultimately written, there will certainly be other chap-ters. In particular, it will be necessary to investigate the influence of the rise of professionalpolicing and prosecution and the accompanying changes in the levels of crime reporting anddetection; changes in the social composition of victim and offender groups; changes in therates and types of crime; and the intellectual influence of the marketplace model in an agewhen laissez faire was not an epithet. However, these other phenomena were largely experi-enced in Continental countries that did not turn to plea bargaining. Anyone looking beyondthe uniquely Anglo-American procedural development that we have emphasized needs toexplain why plea bargaining has characterized lands with such disparate social compositionas the United States and England, but not Germany, France, or the other major Europeanstates.

In the middle of the 19th century, when German criminal procedure was being given itsmodem shape, German scholars routinely studied English procedure as a reform model. Theyfound much to admire and to borrow (including the principle of lay participation in adjudica-tion and the requirement that trials be conducted orally and in public), but they wereunanimous in rejecting the guilty plea. It was wrong for a court to sentence on "mere confes-sion" without satisfying itself of the guilt of the accused. See, e.g., von Arnold, Gestandnissstatt des Verdicts, 7 GERICHTSSAALt. 1, 265, 275 (1855); Walther, Ueber die processualischeWirkung des Gestandnisses im Schwurgerichtsverfahren, 1851 ARCHIV ESCRIMINALRECHTS(Neue Folge) 225; Das Schwurgericht: Gestiindniss und Verdikt und Kollision zwischenbeiden, 18 GOLTDAMMERSRCHIV30 (1870).

22 This paragraph (with note 21) is derived from Langbein, supra note 12.


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The University of ChicagoLaw ReviewIII. THEPARALLELS

Let me now turn to my main theme-the parallelsin functionand doctrine between the medieval Europeansystem of judicialtorture and our plea bargainingsystem. The starting point, whichwill be obviousfromwhat I have thus farsaid, is that each of thesesubstitute proceduralsystems arose in responseto the breakdownof the formalsystem of trial that it subverted.Both the medievalEuropean aw of proofand the modem Anglo-Americanaw of jurytrial set out to safeguard he accusedby circumscribinghe discre-tion of the trierin criminaladjudication.The medievalEuropeansweretryingto eliminate the discretionof the professional udge byrequiringhim to adhere to objective criteriaof proof.The Anglo-Americantrial system has been caught up over the last two centu-ries in an effortto protectthe accusedagainstthe dangersofthejurysystem, in which laymen ignorantof the law returna one- or two-wordverdictthat they do not explainorjustify. Each systemfounditself unable to recant directlyon the unrealistic evel of safeguardto which it had committed itself, and each then concentratedoninducing the accused to tender a confession that would waive hisright to the safeguards.The European law of torture preservedthe medieval law ofproofundisturbed or those easy cases in which there were two eye-witnesses or voluntaryconfession. But in the more difficult cases(where, I might add, safeguardwas more important), the law oftortureworkedan absolutelyfundamentalchangewithin the systemof proof: t largelyeliminatedthe adjudicative unction.Onceprob-able cause had been determined,the accusedwas made to concedehis guilt ratherthan his accusers to proveit.In twentieth-centuryAmerica we have duplicatedthe centralexperience of medieval European criminal procedure: we havemoved from an adjudicatory o a concessionary ystem. We coercethe accused against whom we find probablecause to confess hisguilt. To be sure, our means are much politer;we use no rack, nothumbscrew,no Spanishbootto mash his legs. But likethe Europe-ans of distant centuries who did employthose machines,we makeit terribly costly for an accused to claim his right to the constitu-tional safeguard of trial. We threaten him with a materially in-creasedsanction if he avails himself of his right and is thereafterconvicted.This sentencingdifferential s what makesplea bargain-ing coercive.There is, of course,a difference23etweenhavingyour

n This difference is related to differences in the sanctions that characterize the medievaland the modem worlds. The law of torture served legal systems whose only sanctions for

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1978] Torture and Plea Bargaining 13limbs crushedif you refuseto confess, orsufferingsome extrayearsof imprisonment if you refuse to confess, but the difference is ofdegree,not kind. Plea bargaining, ike torture,is coercive.24 iketheserious crimewereseverephysical maimingand death. The torturevictim wascoerced ntoa confession that condemnedhim to the most severe of punishments,whereasthe pleabargainrewards he accused with a lessersanction,typicallysome formof imprisonment,nexchange for his confession.Obviously,the greaterthe severity of the sanction that theaccused'sconfessionwill bring down upon himself, the greaterthe coercionthat must bebrought o bearuponhim to wringout the confession.Pleabargainings as coerciveas it hasto be for the modernsystem of sanctions.24Defendersof pleabargaining ometimestry to minimize the force of this pointwith areductio-ad-absurdumrgument: granted that plea bargaining s coercive,so is virtuallyeveryexerciseof criminal urisdiction,since few criminaldefendantsaregenuinevolunteers.I think that the answer o this argument s straightforward. he accusedis made a criminaldefendantagainsthis wishes,but not contrary o his rights.The Constitutiondoes not grantcitizens any immunity from criminalprosecution,but it does grantthem the safeguardoftrial. Coercionauthorizedby law is different romcoercionmeantto overcome he guaranteesof law. Coercingpeopleto stand trial is different fromcoercingthem to waive trial and tobringuponthemselves sanctions that shouldonly be imposedafterimpartialadjudication.Sometimes,as I havementioned n the text, a ratheroppositearguments madein behalfof plea bargaining-not that everything s coercive,but that a meresentencingdifferentialis not seriousenoughto be reckonedas coercion.Onecan test this pointsimply by imagininga differentialso great (e.g., death versus a fifty-centfine) that any reasonabledefendantwould waive even the strongestdefenses. Like torture,the sentencingdifferential n pleabargainingelicits confessionsof guilt that would not be freely tendered. It is, therefore,coercive n the same sense as torture,althoughnot in the same degree.The question whethersignificantnumbers of innocentpeople do plead guilty is not,of course,susceptibleto empiricaltesting. It is knownthat manyof those whoplead guiltyclaimthat they areinnocent.See A. BLUMBERG,RIMINALUSTICE9-92(1970).See also textat note 29 infra (discussingNorth Carolinav. Alford). Alschulerthinks that "the greatestpressures o plead arebrought o bear on defendantswhomay be innocent."Alschuler,TheProsecutor'sRole in Plea Bargaining,36 U. CH. L. REV. 0, 60 (1968).See id. at 59-62forevidence that the threatened"sentencedifferentialbetweenguilty-pleaandtrial defendantsincreases n directproportiono the likelihoodof acquittal."Id. at 60. Alschulerreportsonecase that resemblesthe hypotheticalchoicebetweendeath penaltyand fifty-centfine:San Francisco defense attorneyBenjamin M. Davis recentlyrepresenteda manchargedwithkidnappingandforciblerape.Thedefendantwasinnocent,Davissays,andafter investigatingthe case Davis was confidentof an acquittal.The prosecutor,whoseems to have shared the defenseattorney'sopinionon this point, offeredto permitaguilty plea to simple battery.Convictionon this chargewouldnot have led to a greatersentencethan thirty days' imprisonment,and there was every likelihoodthat the de-fendantwould be grantedprobation.When Davis informedhis client of this offer, heemphasizedthat conviction at trial seemed highly improbable.The defendant'sreplywas simple:"I can't take the chance."Id. at 61.I do not think that great numbersof Americandefendantsplead guilty to offensescommittedby strangers. Thelawof torturewasalsonot supposed o applyin circumstanceswherethe accused couldexplainawaythe evidence that mightotherwisehavegivencausetoexamine him under torture.See J. LANGBEIN,upra note 8, at 183.) I do believe that pleabargainings used to coerce the waiver of tenable defenses,as in AttorneyDavis'sexample,supra,orwhen the offensehasa complicatedconceptualbasis,as in tax and otherwhitecollarcrimes.The objection s sometimesvoiced that if an accused s innocent,it standsto reason hat


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The Universityof ChicagoLaw ReviewmedievalEuropeans, he Americansare nowoperatinga proceduralsystem that engages in condemnationwithout adjudication.25hemaxim of the medieval Glossators,no longer applicable to Euro-pean26aw, now aptly describes American aw: confessioest reginaprobationum,confession s the queenof proof.I have said that European aw attemptedto devise safeguardsfor the use of torturethat proved illusory;these measuresbear aneerie resemblance to the supposedsafeguardsof the American awof plea bargaining.Foremostamongthe illusorysafeguardsof bothsystems is the doctrinalpreoccupationwith characterizing he in-ducedwaiversas voluntary.The Europeansmade the torturevictimrepeat his confession"voluntarily,"but underthe threat of beingtorturedanew if he recanted. The Americancounterpart s Rule11(d)of the Federal Rulesof CriminalProcedure,which forbidsthecourt from accepting a guilty plea without first "addressingthedefendant personallyin open court, determiningthat the plea isvoluntaryand not the result of forceorthreatsor of promisesapartfrom a plea agreement. "27 Of course, the plea agreement is thesourceof the coercionand alreadyembodiesthe involuntariness.The architectsof the European aw of torturesoughtto enhancethe reliabilityof a torture-induced onfessionwith othersafeguardsdesignedto substantiate its factual basis. We have said that theyrequireda probable cause determinationfor investigation undertortureand that they directed the courtto take steps to verifytheaccuracyof the confessionby investigatingsome of its detail. Wehave explained why these measures were inadequateto protectmany innocent suspects from torture, confession,and condemna-tion. Probablecause is not the same as guilt, andverification,evenhe willpresshis defenseat trial; f an innocentaccuseddoespleadguilty,he mustnecessarilybe calculatingthat there is a significantprobabilityhat the trierwill fail to recognizehisinnocencedespitethe great safeguardsof trial designed o preventsucherror. f trials wereperfectlyaccurate,plea bargainingwouldbe perfectlyaccurate,since no innocentpersonwouldhavean incentive o accusehimself.Ironically,herefore, nyonewhowoulddenigratepleabargaining ecause t infringes he rightto trial mustalso assumethat the trial itself isto some extent recognizedo be mistake-prone.The response,of course, s that paradox snot contradiction.So longas human udgment s fallible,no workable rialprocedurean domore han minimizeerror.The socialcostof a ruleof absolutecertainty-massivereleaseofthe culpable-would be intolerable.This was the lessonof the medievalEuropeanaw,andit explains why the standardof our law is not "beyonddoubt"but "beyondreasonabledoubt."

D "A plea of guilty ... is itself a conviction .... More is not required;the court hasnothingto do but give judgmentand sentence."Kerchevalv. United States, 274 U.S. 220,223(1927).n See Casper & Zeisel, Lay Judges in the German Criminal Courts, 1 J. LEGALTUD.135,146-47 1972)." FED. R. CRIM.P. 11(d) (emphasis added).

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Tortureand Plea Bargainingif undertakenin good faith, could easily fail as a safeguard,eitherbecause the matters confessed were not susceptible of physical ortestimonial corroboration, or because the accused might knowenoughabout the crime to lend verisimilitudeto his confession eventhough he was not in fact the culprit.The American law of plea bargaining has pursued a similarchimera: the requirementof "adequatefactual basis for the plea."Federal Rule 11(f) provides that "the court should not enter judg-ment upon [a guilty] plea without making such inquiry as shallsatisfy it that there is a factual basis for the plea."28As with thetorturedconfession, so with the negotiated plea: any case that hasresisted dismissal for want of probable cause at the preliminaryhearingwill rest upon enoughinculpatingevidence to cast suspicionuponthe accused. The functionof trial, whichplea bargainingelim-inates, is to require he courtto adjudicatewhether the facts provensupportan inferenceof guilt beyond a reasonabledoubt. Consider,however, the case of North Carolina v. Alford,29decided in thisdecade, in which the U.S. Supreme Court found it permissible tocondemn without trial a defendant who had told the sentencingcourt:"I pleaded guilty on second degreemurderbecause they saidthere is too much evidence, but I ain't shot no man .... I justpleaded guilty because they said if I didn't they wouldgas me forit.... I'm not guilty but I plead guilty."30 invite you to compareAlford's statement with the explanation of one Johannes Julius,seventeenth-centuryburgomasterof Bamberg,who wrote from hisdungeon cell where he was awaiting execution, in order to tell hisdaughter why he had confessedto witchcraft"forwhichI must die.It is all falsehood and invention, so help me God . . . They nevercease to torture until one says something."31The tortured confession is, of course, markedly less reliablethan the negotiated plea, because the degreeof coercionis greater.An accused is more likely to bear false witness against himself inorder to escape further hours on the rack than to avoid risking alongerprisonterm. But the resultingmoralquandary s the same.:2

2 Id.11(f).2, 400 U.S. 25 (1970).30 d. at 28 n.2.3' Quotedin H.R. TREVOR-ROPER,HE EUROPEAN ITCH-CRAZEFTHE16THAND17THCENTURIES4 (1969) (Pelican ed.).32 Some of those who have favored me with prepublication ritiquesof this paperhaveresisted this point-largely, I think, becausethey do not give adequateweightto the serious-ness with which the law of torture undertook o separatethe guilty from the innocent.Mycriticssuggestthat plea bargainings in theorymeantto have a differential mpact upontheguilty and the innocent, whereas torture was not. They contend that the plea bargaining

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The University of ChicagoLaw ReviewJudgeLevinof Michiganwasspeakingof the negotiatedguiltyplea,but he could as well have been describingthe torturedconfessionwhen he said, "there is no way of knowingwhether a particularguilty plea was given because the accused believed he was guilty,or because of the promisedconcession."33 eccaria might as wellhave been speakingof the coercionof plea bargainingwhenhe saidof the violence of torturethat it "confoundsand obliterates thoseminute differencesbetweenthingswhich enableus at times to knowtruth fromfalsehood."34 he doctrineof adequatefactual basis forthe plea is no better substitute for proof beyondreasonabledoubtthan was the analogousdoctrinein the law of torture.

The factualunreliabilityof the negotiated plea has furthercon-sequences,quite apartfrom the increaseddangerof condemninganinnocent man. In the plea bargaining hat takes the formof chargebargaining(as opposedto sentence bargaining),the culprit is con-victed not for what he did, but for something less opprobrious.Whenpeoplewhohave murderedaresaid to be convictedof wound-ing, or when those caught stealing are nominallyconvictedof at-tempt orpossession,cynicismaboutthe processesof criminal usticeis inevitablyreinforced.35his wilful mislabellingplays havocwithsystemmeansto tell the accused,"Don'tput us to the troubleof a trialunlessyouarereallyinnocent,"whereas he lawof torturegavethe same messageto both the innocentand theguilty,"Confessorthe painwill continue."I think that both branchesof the argumentare mistaken.I havealreadypointedout,supranote 24, that plea bargainingcan and does induce innocent defendantsto convictthemselves.As for the law of torture,I shouldreiterate hat the safeguardsdiscussedabove,see text at notes6-9supra,weredesigned orthe solepurpose fseparatinghe innocent romthe guilty, and the law of torture madeexpressprovision or releasing hose who did notconfessunder torture.See J. LANGBEIN,upranote 1, at 16, 151n.55. I am verywillingtoconcedethat the safeguardsof the lawof torturewereevenless effectivethan thoseof pleabargaining,but as I have said in the text, the differences one of degreeandnot kind.3 Peoplev. Byrd, 12 Mich. App. 186, 206-07,162 N.W.2d777, 787 (1968)(Levin,J.,concurring)italics deleted).

N Beccaria,Of Crimesand Punishment(1st ed. 1764)(J. Grigson rans.),reprinted npreface to A. MANZONI,THECOLUMNF NFAMY3 (1964)." See, e.g., Sudnow,NormalCrimes:SociologicalFeaturesof thePenalCode na PublicDefenderOffice,12 Soc. PROB.55, 158-59(1964)(child molestationcases resulting n noseriousharm to the victimregularly educed o the chargeof loiteringarounda schoolyard,even if the offense was committed nowherenear a schoolyard). I owe this reference oProfesorRichardLempert.)Thesentencesprescribed ystatutein the UnitedStatesaremarkedlymore evere hanforcomparable ffenses n European tates. In the wordsofJudgeFrankel,ours s "a nationwhereprisonsentencesof extravagant engthare more common han they are almostany-whereelse." UnitedStatesv. Bergman,416F. Supp.496,502(S.D.N.Y. 1976).I knowofnostudyof the point, but I wouldbe surprisedf HansZeiselwerefarwrong n his suggestionthat each monthof imprisonmentn Continentalsentencescorrespondso a year in theUnited States. Zeisel, Die Rolle der Geschworenen n den USA, 21 OSTERREICHISCHEJURISTENZEITUNG21,123(1966).The severityof ourprescribedentencescontributeso the

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Torture and Plea Bargainingour crime statistics, which explains in part why Americans-uniquely among Western peoples-attach so much importanceto arrest records rather than to recordsof conviction. I think thatthe unreliability of the plea, the mislabelling of the offense, andthe underlying want of adjudication all combine to weaken themoral forceof the criminal law, and to increasethe public'suneaseabout the administrationof criminaljustice. The case of James EarlRay is perhaps the best example of public dissatisfaction over theintrinsic failure of the plea bargainingsystem to establish the factsabout crime and guilt in the forumof a publictrial.36t is interestingto rememberthat in Europein the age of Beccaria and Voltaire,thewant of adjudicationand the unreliabilityof the law of torture hadbred a strangelysimilar cynicism towards that criminaljustice sys-tem.Our law of plea bargaininghas not only recapitulatedmuch ofthe doctrinalfolly of the law of torture,complete with the patheticplea bargainingsystem by expandingthe potentialdifferentialbetween sentence followingtrial and sentencepursuantto plea bargain.

In the nineteenthand twentiethcenturies,when the Europeanswereameliorating heirsentences,we werenot. It is tempting to wonderwhetherthe requirements f the plea bar-gainingsystemhave been somewhatresponsible.Of course,plea bargaining s not responsible or all of the downcharging nd resultantmislabelling n whichmoder Americanprosecutors ngage.Ifthe prosecutor iews the statu-torily prescribedminimum sentenceforan offenseas too severe,he can downchargewithoutexactinga concessionaryquid proquofromthe accused.3 Ofcourse,not everytrial resolvesthe questionof guiltof innocence o publicsatisfac-tion. The Sacco-Vanzettiand the Rosenbergcases continue to be relitigated n the forumofpopularopinion.'However, lea bargainingeavesthe publicwith what I believeto be a morepronounced enseof unease aboutthe justnessof results,by avoiding he openventilationofevidence that characterizespublic trial. Just this concernappearsto have motivated thegovernmentn the plea-bargained riberycaseof Vice-PresidentAgnew o take such extraor-dinarystepsto assure he disclosureof the substanceof the prosecution ase. See N.Y. Times,Oct. 11, 1973,? 1, at 35-38.The public'shostility to plea bargainingshould suggestwhy some of my colleaguesinthe law-and-economicsraternityare mistakenin their complacentassimilationof plea bar-gainingto the modelof the negotiatedsettlementof civil disputes.Howevergreatthe opera-tional similarity,there is a profounddifference n purposebetween civil and criminalsanc-tions. HenryHart was surelycorrectthat "[t]hecoreof the difference"between a confinedmental patient and an imprisonedconvict is "that the patient has not incurred he moralcondemnationof his community,whereas he convicthas."Hart,The Aims of the CriminalLaw, 23 LAW& CONTEMP.ROB.401, 406 (1958).The moral forceof the criminal sanctiondependsfor part of its efficacyon the sanction havingbeen imposedafter rationalinquiryinto the facts, culminatingin an adjudicationof guilt. To assert the equivalencyof waiverand adjudication s to overlook he distinctivecharacteristicof the criminal aw.It is for the same reasonthat the sentence differentialsrequiredby plea bargainingareso repugnant o any tenabletheoryof sentencing.Nothingin the theoryof deterrence,refor-mation,orretributionustifiesthe enormousdifferentialsneededto sustainplea bargaining.Those differentialsexist without a moral basis. On their extent, see, e.g., H. ZEISEL,upranote 11;Alschuler,supranote 11, at 1082-87.

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The University of ChicagoLaw Reviewsafeguardsof voluntarinessand factual basis that I have just dis-cussed, but it has also repeatedthe main institutional blunder ofthe law of torture.Plea bargainingconcentrateseffectivecontrolofcriminalprocedure n the hands of a single officer. Our formallawof trialenvisagesa divisionofresponsibility.Weexpectthe prosecu-tor to make the chargingdecision,the judgeand especiallythe juryto adjudicate, and the judge to set the sentence. Plea bargainingmergesthese accusatory,determinative,and sanctional phases ofthe proceduren the handsof the prosecutor.Studentsofthe historyof the law of torture are reminded that the greatpsychological al-lacy of the Europeaninquisitorialprocedureof that time was thatit concentrated n the investigatingmagistrate he powersof accusa-tion, investigation,torture,and condemnation.The single inquisi-tor whowieldedthose powersneededto have what onerecenthisto-rian has called "superhumancapabilities [in orderto] . . . keephimself in his decisional function free from the predisposing nflu-ences of his own instigatingand investigatingactivity."37The dominant versionofAmericanpleabargainingmakes simi-lar demands:it requires he prosecutor o usurpthe determinativeand sentencingfunctions, hence to make himselfjudge in his owncause. I cannotemphasizetoo stronglyhowdangerous his concen-tration of prosecutorialpowercan be. The modernpublicprosecutorcommandsthe vast resourcesof the state forgatheringandgenerat-ing accusing evidence. We allowed him this power in large partbecausethe criminal trial interposedthe safeguardof adjudicationagainst the danger that he might bring those resourcesto bearagainst an innocent citizen-whether on account of honest error,arbitrariness,orworse.38 ut the plea bargaining ystem has largelydissolved that safeguard.While on the subject of institutional factors, I have one lastcomparison o advance. The point has been made,mostrecently bythe Attorney-General f Alaska,39hat preparingand taking casesto trialis muchharderwork hanpleabargaining-for police, prose-cutors, judges, and defense counsel. In short, convenience-or

37 1 E. SCHMIDT, LEHRKOMMENTAR ZUR STRAFPROZESSORDNUNG UND ZUM GERICHTSVER-FASSUNGSGESETZ97 (2d ed. 1964)." One need not necessarily accept Jimmy Hoffa's view that Robert Kennedy was con-ductinga personalandpoliticalvendettaagainsthim in order o appreciate he danger hathe mighthave been. The power o prosecuteas we know t containswithinitself the powerto persecute. Hoffa contended "that special investigatorsfrom the Justice Dept. andhundreds of agents from the Federal Bureau of Investigation were used to satisfy 'a personalhate'of RobertKennedy."Bus. WEEK,eb. 13, 1965,at 48.

3, Gross, Plea Bargaining: The Alaska Experience, 13 LAW& Soc'Y REV. (1979) (forth-coming).

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Torture and Plea Bargainingworse, sloth-is a factor that sustains plea bargaining.We supposethat this factor had a little to do with tortureas well. As someonein India remarked o Sir JamesFitzjames Stephen in 1872 abouttheproclivity of the native policemen for torturingsuspects, "It is farpleasanter to sit comfortablyin the shade rubbingred pepper intoa poor devil's eyes than to go about in the sun hunting up evi-dence."40 f we were to generalize about this point, we might saythat concessionarycriminal proceduralsystems like the plea bar-gaining system and the system of judicial torturemay developtheirown bureaucracies and constituencies. Here as elsewhere the oldadage may apply that if necessity is the mother of invention, lazi-ness is the father.

IV. THEJURISPRUDENCEFCONCESSIONARYRIMINALROCEDUREHaving developedthese parallelsbetweentortureand plea bar-gaining, I want to drawsome conclusionsaboutwhat I regardas thelessons of the exercise. The most important is this: a legal systemwill do almost anything, tolerate almost anything, before it willadmit the need for reformin its system of proofand trial. The lawof tortureenduredfor half a millennium although its dangersanddefects had been understood virtually from the outset; and pleabargaininglives on although its evils are quite familiar to us all.What makes such shoddy subterfuges so tenacious is that theyshield their legal systems from having to face up to the fact ofbreakdown n the formal law of proofand trial.Why is it so hard fora legal system to reforma decadentsystemof proof?I think that there are two main reasons. One is in a sensepractical: nothing is quite so imbedded in a legal system as the

proceduresforproofand trial, because most of what a legal systemdoes is to decide matters of proof-what we call fact-finding. (Wasthe traffic light green or red, was this accused the man who firedthe shot or robbedthe bank?) Blackstone emphasizedthis point inspeaking of civil litigation, and it is even more true of criminallitigation. He said: "experiencewill abundantly shew, that abovea hundredof our lawsuits arise from disputed facts, for one wherethe law is doubted of."41Every institution of the legal system isgearedto the system of proof;forthrightreconstructionwould dis-turb, at one level or another, virtually every vested interest.The inertia, the resistance to change that is associated with40 1 J.F. STEPHEN,A HISTORYFTHECRIMINALAWOFENGLAND42 n.1 (1883). Stephen'sforcefulquotationhasbeencitedforthis pointelsewhere;McNabb v. United States,318U.S.332, 344 n.8 (1943); J. LANGBEIN,upra note 1, at 147 n.14; Alschuler, supra note 11, at 1103n.137.41 3 W. BLACKSTONE,OMMENTARIESNTHELAWSOFENGLAND330 (1768).

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The University of ChicagoLaw Reviewsuch deep-seatedinterests, is inevitablyreinforcedby the powerfulideologicalcomponentthat underlies a system of proofand trial.Adjudication,especiallycriminaladjudication, nvolvesa profoundintrusion into the lives of affected citizens. Consequently, n anysocietythe adjudicativepowermust be restedon a theoreticalbasisthat makes it palatableto the populace.Because the theoryof proofpurportsto governand explain the applicationof the adjudicativepower, t plays a central rolein legitimatingthe entirelegal system.The medieval Europeanlaw of proofassuredpeople that.the legalsystem would achieve certainty. The Anglo-American ury systeminvoked the inscrutablewisdom of the folk to justify its results.42Each of these theories was ultimately untenable-the Europeantheoryvirtuallyfrom its inception,the Anglo-Americanheoryaftera centuries-long ransformationof juryprocedure.Yet the ideologi-cal importanceof these theoriespreventedeitherlegal system fromrecanting upon them. For example, I have elsewherepointed outhowin the nineteenthcenturythe ideologicalattachment to thejuryretardedexperimentationwith jurylesstrial-that is, what we nowcall bench trial-while the plea bargaining system of jurylessnontrialprocedurewas taking shape out of public sight.43LikethemedievalEuropean awyersbeforeus, we have been unable to admitthat our theoryof proofhas resulted in a level of proceduralcom-plexity and safeguardthat rendersour trial procedureunworkablein all but exceptionalcases. We have responded o the breakdownof our formal system of proof by taking steps to perpetuatetheideologyofthe failedsystem, steps that closelyresemble hose takenby the architectsof the law oftorture.Like the medievalEuropeans,we have preservedan unworkable rial procedure n form,we havedeviseda substitute nontrialprocedure o subvertthe formalproce-dure, and we have arranged o place defendants under fiercepres-sure to "choose"the substitute.That this script could have been played out in a pair of legalcultures so remote fromeach other in time and place invites somesuggestionsabout the adaptive processesofcriminalprocedural ys-tems. First, thereare intrinsic limits to the level of complexityandsafeguardthat even a civilized people can tolerate. If those limitsare exceeded and the repressive capacity of the criminal justicesystem is thereby endangered, he system will respondby develop-ing subterfugesthat overcomethe formallaw. But subterfugesareintrinsically overbroad,preciselybecause they are not framedin a

42 See T.F.T. PLUCKNETT,EDWARDANDCRIMINALAW 4-75 (1960).43 Langbein, supra note 12.

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Torture and Plea Bargainingcareful,explicit, and principledmannerdirected to achievinga pro-per balance between repressionand safeguard.The upshot is thatthe criminaljustice system is saddledwith a lower evel of safeguardthan it could and would have achieved if it had not pretendedtoretain the unworkableformalsystem.The medieval Europeans insisted on two eyewitnesses andwoundup with a law of torturethat allowedcondemnationwith nowitnesses at all. Americanplea bargaining, n like fashion,sacrificesjust those values that the unworkablesystem of adversary urytrialis meant to serve: lay participation in criminal adjudication, thepresumptionof innocence, the prosecutorialburdenof proofbeyondreasonabledoubt, the right to confront and cross-examineaccusers,the privilege against self-incrimination.Especially in its handlingof the privilege against self-incrimination does Americancriminalprocedure reach the outer bounds of incoherence. In cases likeGriffinv. California4 we have exaggeratedthe privilegeto senselesslengths in formal doctrine, while in the plea bargaining sys-tem-which is our routine procedure or processingcases of seriouscrime-we have eliminated practically every trace of the privilege.

Furthermore,the sacrifice of our fundamental values throughplea bargainingis needless. In its sad plea bargainingopinions ofthe 1970s,the SupremeCourthas effectively admitted that forrea-sons of expediency American criminal justice cannot honor itspromiseof routineadversarycriminaltrial,45 ut the Courthas sim-ply assumed that the present nontrialplea bargaining procedure sthe inevitable alternative. Thereis, however,a middlepath betweenthe impossible system of routine adversaryjury trial and the dis-gracefulnontrial system of plea bargaining.That path is a stream-lined nonadversarial rial procedure.The contemporarynonadversarialcriminal justice systems ofcountries like West Germany have long demonstrated that ad-vanced industrial societies can institute efficient criminal proce-dures that nevertheless provide for lay participation and for fulladjudication in every case of serious crime. I have described theGermansystem in detail elsewhere,46 nd I have made no secret ofmy admiration for the brilliantbalance that it strikes betweensafe-guard and proceduraleffectiveness. Not the least of its achieve-

44 380 U.S. 609 (1965).45In Santobello v. New York, 404 U.S. 257 (1971), Chief Justice Burger explained thatplea bargaining "is to be encouraged" because "[i]f every criminal charge were subjected toa full-scale trial, the States and the Federal Government would need to multiply by manytimes the number of judges and court facilities." Id. at 260.46 See generally J. LANGBEIN,COMPARATIVERIMINALROCEDURE:ERMANY1977).

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The Universityof ChicagoLaw Reviewments is that in cases of serious crime it functions with no pleabargaining whatsoever.47Confessions are still tendered in manycases (41 percent in one sample48), ut they are not and cannot bebargainedfor; nor does a confession excuse the trial court fromhearing sufficient evidence for conviction on what amounts to abeyond-reasonable-doubttandardof proof.49n a trial procedureshorn of all the excesses of adversaryprocedureand the law ofevidence, the time differencebetween trial without confessionandtrial with confession s not all that great.50 ecause an accusedwillbe put to trial whetherhe confessesornot, he cannotinflict signifi-cant costs upon the prosecution by contesting an overwhelmingcase. Confessions are tendered at trial not because they are re-warded,but because there is no advantageto be wrungfromtheprocedural ystem by withholdingthem.I hope that over the coming decades we who still live undercriminal ustice systemsthat engagein condemnationwithoutadju-dicationwill face up to the failureof adversarycriminalprocedure.I believe that wewill find in modernContinentalcriminalprocedurean irresistible model for reform.That, however, s a theme aboutwhichI can say no more if I am to remainwithin the proper phereof the CrosskeyLecturein Legal History.Thus, I ambrought o concludewitha paradox.Todayin landswherethe law of torture oncegoverned,peopleswho live in content-ment with their criminaljustice systems look out across the sea indisbelief5' to the spectacle of plea bargaining n America, whileAmerican tourists come by the thousands each year to gawk indisbeliefat the decayingtorture chambersof medieval castles.

17For recent discussion see Langbein& Weinreb, ContinentalCriminalProcedure:"Myth"and Reality, 87 YALE .J. 1549,1561-65 1978).Forthe observation hat modemContinentalnonadversarial rocedure onfersmoresafeguardsuponthe accusedthan doesAmericanpleabargaining,eeDamaska,EvidentiaryBarrierso Conviction ndTwoModelsof CriminalProcedure:A Comparative tudy, 121U. PA.L. REV. 06,552 (1973).4 Casper& Zeisel,supranote26, at 146-47,150-51." See J. LANGBEIN,upra note 46, at 66-67, 73-74.See id. at 77;Casper& Zeisel,supranote 26, at 150.51 See Langbein, upranote20, at 457 n.44 (1974):Plea bargainings all but incomprehensibleo the Germans,whoseordinary ispositiveprocedures workablewithoutsuchevasions.IntheGermanpress hejudicialproceduresurroundinghe resignation fVicePresidentAgnewwasviewedwith thesortofwondernormally nspiredby reportsof the customsof primitivetribes."The resignationoc-curredas part of a 'cow-trade,'as it can only in the United States be imagined."BadischeZeitung,Oct. 12, 1973,at 3, col. 2.

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