Let me now turn to my main theme—the parallels in function and doctrine between the medieval European system of judicial torture and our plea bargaining system. The starting point, which will be obvious from what I have thus far said, is that each of these substitute procedural systems arose in response to the breakdown of the formal system of trial that it subverted. Both the medieval European law of proof and the modern Anglo-American law of jury trial set out to safeguard the accused by circumscribing the discretion of the trier in criminal adjudication. The medieval Europeans were trying to eliminate the discretion of the professional judge by requiring him to adhere to objective criteria of proof. The Anglo-American trial system has been caught up over the last two centuries in an effort to protect the accused against the dangers of the jury system, in which laymen ignorant of the law return a one- or two-word verdict that they do not explain or justify. Each system found itself unable to recant directly on the unrealistic level of safeguard to which it had committed itself, and each then concentrated on inducing the accused to tender a confession that would waive his right to the safeguards.
The European law of torture preserved the medieval law of proof undisturbed for those easy cases in which there were two eyewitnesses or voluntary confession. But in the more difficult cases (where, I might add, safeguard was more important), the law of torture worked an absolutely fundamental change within the system of proof: It largely eliminated the adjudicative function. Once probable cause had been determined, the accused was made to concede his guilt rather than his accusers to prove it.
In twentieth-century America we have duplicated the central experience of medieval European criminal procedure. We have moved from an adjudicatory to a concessionary system. We coerce the accused against whom we find probable cause to confess his guilt. To be sure, our means are much more polite; we use no rack, no thumbscrew, no Spanish boot to mash his legs. But like the Europeans of distant centuries who did employ those machines, we make it terribly costly for an accused to claim his right to the constitutional safeguard of trial. We threaten him with a materially increased sanction if he avails himself of his right and is thereafter convicted. This sentencing differential is what makes plea bargaining coercive. There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive. Like the medieval Europeans, the Americans are now operating a procedural system that engages in condemnation without adjudication. The maxim of the medieval Glossators, no longer applicable to European law, now aptly describes American law: Confessio est regina probationum, confession is the queen of proof.
(John H. Langbein, "Torture and Plea Bargaining," The Public Interest 58 [winter 1980]: 43-61, at 50-1 [italics in original])
Note from KBJ: Professor Langbein would like to abolish plea bargaining. I have no strong views on this subject. But his analogical argument comparing plea bargaining to torture is weak. These are not two types of coercion, one merely weaker than the other. Threatening to torture X if X does not confess to the crime is coercion, for it contracts X's choices. X is told that there are only two choices: confess or be tortured. X is deprived of a third choice, namely, not confessing and not being tortured. Offering X a lesser punishment if X forgoes trial is not coercion, for it does not contract X's choices. It expands X's choices! If there were no plea bargaining, X's choice would be between pleading guilty to the original offense and pleading not guilty and going to trial. Plea bargaining does nothing to contract these choices; it merely gives the defendant a third choice. Some philosophers call the latter a "coercive offer," but that is to misunderstand the concept of coercion. If it's an offer, then it's not coercive, and if it's coercive, then it's not an offer. A coercive offer is like a married bachelor. I'm surprised that someone as bright as Professor Langbein could make such a simple mistake. As for why he makes it, I don't know. Perhaps he is so eager to abolish plea bargaining that he is groping for an analogy that portrays it in a bad light. Torture does the trick! If I were a criminal defendant, I would welcome the chance to plea bargain; and if I already had the right to plea bargain, I would resent having it taken away from me. None of this is true of torture.
Keith Burgess-Jackson, J.D., Ph.D. 