Torture and Plea Bargaining
Langbein, John H.
The University of Chicago Law Review, Vol. 46, No. 1 (Autumn, 1978), pp. 3-22
In this essay I shall address the modem American system of plea bargaining from a perspective that must appear bizarre, although I hope to persuade you that it is illuminating. I am going to contrast plea bargainingwith the medieval Europeanlaw of torture. My thesis is that there are remarkableparallels in origin, in function, and even in specific points of doctrine, between the law of torture and the law of plea bargaining. I shall suggest that these parallels expose some important truths about how criminal justice systems respondwhen their trial proceduresfall into deep disorder.
For about half a millennium, from the middle of the thirteenth century to the middle of the eighteenth, a system of judicial torture lay at the heart of Continental criminal procedure.In our own day the very word “torture”is, gladly enough, a debased term. It has come to mean anything unpleasant, and we hear people speak of a tortured interpretation of a poem, or the torture of a dull dinner party. In discussions of contemporarycriminal procedure we hear the word applied to describe illegal police practices or crowded prison conditions. But torture as the medieval European lawyers understood it had nothing to do with official misconduct or with criminal sanctions.