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Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking

Published online by Cambridge University Press:  02 April 2024

Debra S. Emmelman
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Extract

Through presentation of ethnographic research findings on court-appointed defense attorneys, this article examines plea bargaining as a component of a recursive process for deciding whether a case should be settled immediately or proceed further. The decisionmaking process has three types of activities: assessing the offer for a guilty plea, negotiating the terms of a plea bargain, and counseling the defendant and deciding on a course of action. Until a criminal case is actually settled either through a final plea agreement or a jury trial, this decisionmaking process occurs over and over again. Viewed as a component of this recursive process, plea bargaining encompasses multiple episodes of negotiating behavior as well as a wide range of formal litigation proceedings. Perhaps more important, plea bargaining and trial procedures can actually be seen to converge. I conclude that this mode of plea bargaining is not merely an effective method for representing defendants but perhaps equally or more effective than trial. Some important limitations of the findings are also discussed.

Type
Articles
Information
Law & Society Review , Volume 30 , Issue 2 , 1996 , pp. 335 - 360
Copyright
Copyright © 1996 by The Law and Society Association

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Footnotes

A previous version of this article was presented at the Annual Meetings of the Midwest Sociological Society in Chicago, 8 April 1993. I thank Joseph R. Gusfield, Jacqueline P. Wiseman, Michael E. Butler, Theodore T. Smith, the Spring '93 feminist support group in the Sociology and Anthropology Department at Southwest Missouri State University, as well the anonymous reviewers of Law & Society Review for helpful comments. Any errors of fact or interpretation are, however, the author's sole responsibility.

References

Albonetti, Celesta A. (1992) “Charge Reduction: An Analysis of Prosecutorial Discretion in Burglary and Robbery Cases,” 8 J. of Quantitative Criminology 317.Google Scholar
Alschuler, Albert W. (1968) “The Prosecutor's Role in Plea Bargaining,” 36 Univ. of Chicago Law Rev. 51.Google Scholar
Alschuler, Albert W. (1975) “The Defense Attorney's Role in Plea Bargaining,” 84 Yale Law J. 1179.Google Scholar
American Bar Association (1986) Standards for Criminal Justice: The Defense Function. 2d Ed. Boston: Little, Brown & Co.Google Scholar
Blumberg, Abraham (1967a) Criminal Justice. Chicago: Quadrangle Books.Google Scholar
Blumberg, Abraham (1967b) “The Practice of Law as a Confidence Game: Organizational Co-optation of a Profession,” 1 Law & Society Rev. 15.Google Scholar
Church, Thomas Jr. (1976) “Plea Bargains, Concessions and the Courts: Analysis of a Quasi-Experiment,” 10 Law & Society Rev. 377.Google Scholar
Eisenstein, James, & Jacob, Herbert (1977) Felony Justice. Boston: Little, Brown & Co.Google Scholar
Eisenstein, James, Flemming, Roy B., & Nardulli, Peter F. (1988) The Contours of Justice: Communities and Their Courts. Boston: Little, Brown & Co.Google Scholar
Emmelman, Debra S. (1990) “Defending Indigents: A Study of Criminal Defense Work.” Ph.D. diss., University of California, San Diego.Google Scholar
Emmelman, Debra S. (1993) “Organizational Conditions that Facilitate an Ethical Defense Posture among Attorneys for the Poor: Observations of a Private Nonprofit Corporation,” 18 Criminal Justice Rev. 223.Google Scholar
Emmelman, Debra S. (1996) “Assessing the Strength of Evidence: The Interpretive Practices of a Private, Nonprofit Corporation of Court-appointed Defense Attorneys.” Dept. of Sociology & Anthropology, Southern Connecticut State Univ.Google Scholar
Farr, Kathryn Ann (1984) “Administration and Justice: Maintaining Balance through an Institutionalized Plea Negotiation Process,” 22 Criminology 291.Google Scholar
Feeley, Malcolm (1973) “Two Models of the Criminal Justice System: An Organizational Perspective,” 7 Law & Society Rev. 407.Google Scholar
Feeley, Malcolm (1979) The Process Is the Punishment. New York: Russell Sage Foundation.Google Scholar
Flemming, Roy B. (1986) “Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients,” 1986 American Bar Foundation Research J. 253.Google Scholar
Glaser, Barney, & Strauss, Anselm (1967) The Discovery of Grounded Theory. Chicago: Aldine Publishing Co.Google Scholar
Goffman, Erving (1963) Stigma: Notes on the Management of Spoiled Identity. Englewood Cliffs, NJ: Prentice-Hall.Google Scholar
Harris, Ronald A., & Springer, J. Fred (1984) “Plea Bargaining as a Game: An Empirical Analysis of Negotiated Sentencing Decisions,” 4 Policy Studies Rev. 245.Google Scholar
Heumann, Milton (1975) “A Note on Plea Bargaining and Case Pressure,” 9 Law & Society Rev. 515.Google Scholar
Heumann, Milton (1978) Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys. Chicago: Univ. of Chicago Press.Google Scholar
Holmes, Malcolm D., Daudistel, Howard C., & Taggart, William A. (1992) “Plea Bargaining Policy and State District Court Caseloads: An Interrupted Time Series Analysis,” 26 Law & Society Rev. 139.Google Scholar
Kingsnorth, Rodney, & Jungsten, Michael (1988) “Driving under the Influence: The Impact of Legislative Reform on Court Sentencing Practices,” 34 Crime & Delinquency 3.Google Scholar
LaFree, Gary D. (1985) “Adversarial and Nonadversarial Justice: A Comparison of Guilty Pleas and Trials,” 23 Criminology 289.Google Scholar
Lester, Marilyn, & Hadden, Stuart C. (1980) “Ethnomethodology and Grounded Theory Methodology: An Integration of Perspective and Method,” 9 Urban Life 3.Google Scholar
Mather, Lynn M. (1979) Plea Bargaining or Trial? Lexington, MA: Lexington Books.Google Scholar
Maynard, Douglas W. (1984a) Inside Plea Bargaining. New York: Plenum Press.CrossRefGoogle Scholar
Maynard, Douglas W. (1984b) “The Structure of Discourse in Misdemeanor Plea Bargaining,” 18 Law & Society Rev. 75.Google Scholar
Maynard, Douglas W. (1988) “Narratives and Narrative Structure in Plea Bargaining,” 22 Law & Society Rev. 449.Google Scholar
McConville, Michael (1986) “Dilemmas in New Models for Indigent Defense” (Effective Assistance of Counsel for the Indigent Criminal Defendant: Has the Promise Been Fulfilled? New York University, March 23, 1985), 14 Rev. of Law & Social Change 179.Google Scholar
McConville, Michael, & Mirsky, Chester L. (1990) “Understanding Defense of the Poor in State Courts: The Sociolegal Context of Nonadversarial Advocacy,” 10 Studies in Law, Politics, & Society 217.Google Scholar
McDonald, William F. (1979) “From Plea Negotiation to Coercive Justice: Notes on the Respecification of a Concept,” 13 Law & Society Rev. 385.Google Scholar
McDonald, William F. (1985) Plea Bargaining: Critical Issues and Common Practices. Washington, DC: National Institute of Justice, U.S. Dept. of Justice.Google Scholar
Mileski, Maureen (1971) “Courtroom Encounters: An Observation Study of a Lower Criminal Court,” 5 Law & Society Rev. 473.Google Scholar
Neubauer, David W. (1974) Criminal Justice in Middle America. Morristown, NJ: General Learning Press.Google Scholar
Packer, Herbert (1968) The Limits of the Criminal Sanction. Palo Alto, CA: Stanford Univ. Press.CrossRefGoogle Scholar
Padgett, John F. (1990) “Plea Bargaining and Prohibition in the Federal Courts, 1908–1934,” 24 Law & Society Rev. 413.Google Scholar
Pritchard, David (1986) “Homicide and Bargained Justice: The Agenda-setting Effect of Crime News on Prosecutors,” 50 Public Opinion Q. 143.Google Scholar
Rosett, Arthur & Cressey, Donald (1976) Justice by Consent. Philadelphia: J. B. Lippincott Co.Google Scholar
Ryan, John Paul, & Alfini, James J. (1979) “Trial Judges' Participation in Plea Bargaining: An Empirical Perspective,” 13 Law & Society Rev. 479.Google Scholar
Sarat, Austin, & Felstiner, William L. F. (1986) “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Society Rev. 93.Google Scholar
Skolnick, Jerome H. (1967) “Social Control in the Adversary System,” 11 J. of Conflict Resolution 52.Google Scholar
Sudnow, David (1965) “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office,” 12 Social Problems 255.Google Scholar
Uhlman, Thomas M., & Walker, N. Darlene (1979) “A Plea Is No Bargain: The Impact of Case Disposition on Sentencing,” 60 Social Science Q. 218.Google Scholar
Uhlman, Thomas M., & Walker, N. Darlene (1980) “‘He Takes Some of My Time; I Take Some of His’: An Analysis of Judicial Sentencing Patterns in Jury Cases,” 14 Law & Society Rev. 323.Google Scholar
Utz, Pamela J. (1978) Settling the Facts: Discretion and Negotiating in Criminal Court. Lexington, MA: Lexington Books.Google Scholar