Plea Bargaining

The Experiences of Prosecutors, Judges, and Defense Attorneys

Milton Heumann

• Publisher: University of Chicago Press
• Year: 2020
• Print ISBN: 9780226331881, 9780226331874
• eBook ISBN: 9780226778242
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

"That relatively few criminal cases in this country are resolved by full Perry Mason-style strials is fairly common knowledge. Most cases are settled by a guilty plea after some form of negotiation over the charge or sentence. But why? The standard explanation is case pressure: the enormous volume of criminal cases, to be processed with limited staff, time and resources. . . . But a large body of new empirical research now demands that we re-examine plea negotiation. Milton Heumann's book, Plea Bargaining, strongly and explicitly attacks the case-pressure argument and suggests an alternative explanation for plea bargaining based on the adaptation of attorneys and judges to the local criminal court. The book is a significant and welcome addition to the literature. Heumann's investigation of case pressure and plea negotiation demonstrates solid research and careful analysis."—Michigan Law Review

1

Introduction

Plea bargaining is the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence.¹ Most cases in most criminal courts in this country are plea bargained; notwithstanding the nomenclature, the “trial court” is really a “plea bargaining court.”²

In this book I am concerned with one aspect of these “plea bargaining courts.” Specifically, I will explore the postrecruitment adaptation of new prosecutors, defense attorneys, and judges to the “plea bargaining court.”³ How do newcomers adjust to plea bargaining? What is the adaptation process and what are its substantive outcomes?

Three factors influenced my decision to choose this research problem. First, there is a curious gap in the local court literature between the material on recruitment of personnel to the courts and the discussion of the internal plea bargaining dynamics of the court.⁴ The recruitment studies end at the point where individuals are chosen for a court job; the internal dynamics literature begins with a cross-sectional view of the court and discusses the way experienced personnel process cases. Very little work has been done on what happens to the newcomer after he is recruited and before he becomes a seasoned plea bargainer. And there are simply no systematic studies of why (or if) a novice to the criminal court is transformed into the “eager-beaver” plea bargainer portrayed in studies that concentrate on the internal dynamics of plea bargaining.

The second factor that influenced the choice of this problem was my disenchantment with the internal dynamics of plea bargaining literature itself. As will be demonstrated in chapter 3, the literature strongly suggests that plea bargaining is a function of case pressure—that court personnel plea bargain because of the pressure of “onerously large case loads.”⁵ Preliminary research in the local criminal court, and quantitative case disposition data for Connecticut’s courts dating back to 1880, raise serious doubts about this “case-pressure hypothesis.”⁶ I felt that by studying newcomer adaptation to the plea bargaining system, I could test the efficacy of the case-pressure explanation.

Finally, a policy concern directed my interest toward plea bargaining. Within a span of six years, two national commissions have considered the merits and justifications for plea bargaining, one concluding that plea bargaining is the vital force that keeps criminal cases moving through the courts,⁷ the other rejecting this argument, and calling for the abolition of plea bargaining by 1978.⁸ Again, I hope that my detailed inquiry into newcomer adaptation and my exploration of the efficacy of the case-pressure hypothesis will yield some insights useful for evaluating these divergent conclusions, and more generally be of import for generating realistic policy recommendations about plea bargaining.

Adaptation and the “Organizational Context”

As used here, adaptation refers to the process in which a newcomer learns and is taught about his role obligations, and the related process in which he translates these obligations into a perspective on plea bargaining. Included in the inquiry into adaptation are both attitudinal and behavioral changes. Thus, I will trace the evolution of the newcomer’s attitudes toward his role and toward plea bargaining and will detail changes in his actual role and plea bargaining behavior.

This description of adaptation parallels many definitions of socialization found in the literature, but I am more comfortable working with the former term.⁹ The socialization literature did not yield any frameworks particularly useful to my approach, and I think the term socialization extracts certain costs because of the connotations attached to it.¹⁰ For example, socialization suggests that there are agents of socialization “teaching” newcomers something.¹¹ I will argue below that a significant portion of the newcomer’s adaptation can be explained without reference to the efforts of any such agents, that newcomers simply learn about an environment that differs from what they expected. Though socialization need not necessarily exclude this sort of “learning,” I think adaptation better captures the process which I am trying to describe, and I think it is less likely to evoke false connotative implications.

Newcomer adaptation will be discussed as being shaped by a “learning” and “teaching” component. The learning component refers to the newcomer’s discovery that the reality of the local criminal court differs from what he expected. The teaching component refers to the use of rewards and sanctions by others in the court system to direct newcomer behavior down a particular path. He learns that features of his environment—that is, the characteristics of the cases he must process—are different from what he anticipated, and these differences then “cause” changes in his attitudes and behavior.¹² Alternatively, he may be taught that rewards and penalties are attached to certain actions, and after experiencing these rewards and penalties, his attitudes and behavior may also change.¹³

As will become clear when we discuss adaptation to the defense attorney’s role, as well as to prosecutorial and judicial roles (chapters 4 through 6), failure to consider the “learning” component of newcomer adaptation has led some observers to conclude falsely that the transformation of idealistic newcomers into seasoned plea bargainers reflects the “success” of the court’s reward and sanction mechanism.¹⁴ I will argue that much of the variance in newcomer adaptation is a function of the newcomer’s learning about his role and about the associated constraints that the “realities” of the case characteristics impose upon him. Though he is also “taught” some lessons about plea bargaining, and though failure to consider these would lead to an oversimplified perspective on newcomer adaptation, I will show that “learning” is at the heart of newcomer adaptation.

The dichotomy between learning and teaching also suggests the importance of understanding the “organizational character” of the local criminal court, the “organizational context” in which newcomers adapt. If we are to examine what newcomers learn and what is taught to them, we must have a good grasp of the essential features and “flavor” of the organization within which adaptation takes place. As Stanton Wheeler observed in his discussion of adult socialization: “The emphasis . . . is on features of the social context within which the more immediate processes occur. The justification for the emphasis is simply that these features are an important but little-studied part of the socialization experience . . . Much can . . . be learned about the process of socialization by taking a close look at the structure and situations within which it occurs.”¹⁵

Chapter 3 is devoted exclusively to clarifying the “organizational character” of the local criminal court. Therein I will try to “capture” the essence of the context in which newcomer adaptation unfolds.

Adaptation in Trial Courts

Despite the recent outpouring of literature on local criminal courts, there has been very little systematic research concerned with the adaptation of newcomers in the criminal courts. Instead, one is confronted with a potpourri of prerecruitment socialization studies,¹⁶ biographical and autobiographical accounts,¹⁷ impressionistic forays into the criminal courts that occasionally—and usually pejoratively—discuss the travails of a newcomer to the court,¹⁸ and only two studies whose main emphasis is on adaptation.¹⁹ And these two studies, though encouraging in their emphasis on the importance of the problem, fall short of providing a theoretical framework for further research and/or a set of substantive findings or hypotheses of applicability to the criminal justice process.²⁰ Thus, it is fair to conclude that the study of adaptation in the criminal court is largely unexplored terrain.²¹

This gap in the literature appears all the more curious and disconcerting when we find a substantial research tradition dealing with the adaptation of the freshman congressman²² or the rookie policeman,²³ contrasted with little research on local court actors on one hand, and frequent, and sometimes harsh, testimonials to the effect that a newcomer to the court is ill-prepared for actual practice by his law school education, on the other. Witness, for example, Paul Savoy’s graphic description of the inadequacy of law school training for work in the criminal court.

There is not a single lawyer I know with whom I went to law school who feels that his legal education adequately prepared him for the practice of law . . . My experience in one of the larger postgraduate educational institutions in America—the New York District Attorney’s Office—was sobering. Trying to reconstruct an incident from interviews with witnesses; awakening to the ritualistic performance of police officers on the witness stand; plumbing the subtleties of the plea-bargaining process; learning the nuances of communication between judges and attorneys, I became suddenly aware of the unforgiveable irrelevance of my legal education to what was happening in my head, in the courtroom, and in the streets of our cities. The first case I tried was a numbing experience. My only consolation was that the legal aid lawyer who represented the defendant was as hopelessly untutored as I.²⁴

Of late, even the chief justice of the United States Supreme Court has been wont to complain about the shallowness of preparation of attorneys for courtroom practice. “We are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians. No other profession is as casual or heedless of reality as ours.”²⁵

The limited scope of prior adaptation studies, the testimonials on the lack of preparation of newcomers for practice in the local criminal court, and the research that has been conducted on adaptation to other roles (congressman, police officer) combine to suggest the need for more research on local criminal court actors. In the next section, the theoretical approach employed in this study to fill at least part of the gap in the postrecruitment literature will be discussed.

Adaptation in the Criminal Court: A Theoretical Springboard

The decision to study postrecruitment adaptation within local criminal courts immediately requires some difficult choices of research priorities. Where should one begin, when the literature, rather than foreclosing the examination of broad questions, mandates precisely such a strategy? To what extent should realistic research constraints such as time, money, and access influence one’s theoretical design?

There are neither hard-and-fast, nor totally satisfactory, solutions to these queries. Neither the choices in theory outlined below, nor the choices in research methodology discussed in chapter 2 are ideal; they are, however, my estimates of where the balance ought to be struck, given conflicting claims (and problems) of the theoretical and descriptive literature—certainly not optimal choices, but I hope at least adequate ones.

A major decision entailed limiting the scope of the inquiry into adaptation. Instead of trying to obtain a catalog of problems faced by the newcomers, I thought it more valuable to assess the adaptation process from the perspective of one major aspect of the local criminal court that the newcomer would have to come to terms with. The plea bargaining process, which accounts for the disposition of the overwhelming majority of cases, seemed to be of sufficient interest and significance to warrant examination in this light. In other words, when I speak of adaptation to the local criminal court, I mean adaptation to the plea bargaining process of that court. This focus delimits my interest to job-related norms, system norms, and to the characteristics of the organizational context that are apposite to plea bargaining.

If one is to study adaptation vis-à-vis “something,” that something must be fully understood. In Asher’s study of the learning of legislative norms, for example, he was able to “borrow” the relevant norms from prior research and ask freshmen about them.²⁶ Similarly, I initially expected to rely on the plea bargaining literature for my descriptions of the “something,” and to structure my questions about adaptation on the foundation established by this literature. To both my chagrin and fascination, I found that the plea bargaining literature seriously misconstrued the reality of th...

Table of contents

• Cover
• Copyright
• Title Page
• Dedication
• Contents
• Acknowledgments
• 1. Introduction
• 2. Research Design
• 3. The Context of Adaptation
• 4. Adapting to Plea Bargaining: Defense Attorneys
• 5. Adapting to Plea Bargaining: Prosecutors
• 6. Adapting to Plea Bargaining: Judges
• 7. Conclusions and Implications
• Notes
• Selected Bibliography
• Index