Plea Bargaining as Constitutional Contradiction: A Comparative Study of Criminal Procedure in the American South and Brazil, 1804-1898

The Constitution promises people accused of serious crimes in the United States a host of procedural rights, including the right to trial by jury, protection against self-incrimination, and the opportunity to confront one’s accusers.  Yet today in America, 98 percent of defendants convicted of felony crimes plead guilty and therefore exercise none of these rights.  A growing cross-disciplinary literature has traced the origins of plea bargaining, as the most common form of criminal adjudication in the U.S., to the aftermath of the Civil War and has proposed varying explanations for the procedure’s rise.  Strikingly, however, these accounts have concentrated on jurisdictions in the American North and have not seriously registered slavery or racialization as important historical factors.  This paper relies on Derrick Bell’s theory of constitutional contradiction and on comparative analysis of criminal courts in nineteenth-century America and Brazil to address the literature’s limitations.  It explains why plea bargaining became widespread after the abolition of slavery in the American South but not in Brazil by comparing the cases across two related political-economic dimensions: racialization and infrastructural power.  It proposes that America’s highly racialized criminal procedure and persistently low infrastructural power help explain plea bargaining and other long-run constitutional contradictions.