The Relationship between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach

By Herzog, Sergio | Journal of Criminal Law and Criminology, Fall 2003 | Go to article overview

The Relationship between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach


Herzog, Sergio, Journal of Criminal Law and Criminology


The settlement of criminal cases through bargained guilty pleas has been the focus of increasing research interest over the past few decades. Generally, a plea bargain is reached through an informal process of negotiation in which the prosecutor and the defense counsel reach an out-of-court settlement. In such a settlement, the defendant admits guilt in return for some concession on the part of the prosecution (e.g., reducing the number and/or seriousness of the original criminal charges, or recommending a more lenient punishment than would otherwise be expected). From the prosecutor's viewpoint, plea bargaining results in speedy and certain conviction, especially when the evidence against the defendant is somewhat weak, thereby avoiding the possibility of acquittal in court, not to mention cost of the trial in terms of time and resources. From the judge's point of view, plea bargaining reduces the workload of the court. Research suggests that benefits such as these have led to increasing resort to plea bargaining. Indeed, in some jurisdictions, a vast majority of criminal defendants plead guilty after negotiation between the parties as a matter of course. (1)

However, despite its high frequency, plea bargaining remains one of the most controversial procedures in the criminal justice system; some commentators perceive it as an inevitable and even desirable practice, (2) whereas others consider it to be pernicious and immoral. (3) Such negative views of plea bargaining have led to attempts to eliminate it completely, or to forbid its use for selected offenses. (4)

In the context of this controversy, it is commonly argued that the public is generally located in the anti-plea bargaining camp, viewing it often with suspicion and great distaste. (5) This claim is based on the premise that members of the public abhor injustice and that, in their opinion, plea bargaining prevents justice from being served. Because a negotiated plea to a lesser offense or to a lesser punishment invariably leads to a lesser sentence, plea bargaining allows offenders to receive lesser punishments than they would have received had the prosecution proved the more serious offense at trial. Accordingly, the lay public is expected to voice disapproval when the judicial system lets an offender escape from a relatively serious punishment simply because an agreement between his/her defense counsel and the prosecutor has been reached. (6) Because the public tends to concur with conservative "law and order" advocates who favor tough policies for criminals, (7) it is often assumed that the public will condemn the practice of plea bargaining for being soft on offenders by virtue of the relatively lenient sentences handed down on offenders who admit guilt as a result of plea bargaining. (8)

THE PRESENT STUDY

The main premise of the present study is that, although the assertion that the public does not like plea bargaining seems logical, the assumption of general and uniform disapproval of this practice may not be valid and, therefore, needs to be tested. First, with the exception of a study by Cohen and Doob, (9) there has been no direct empirical investigation of such public perceptions. Second, homogeneous public views are often assumed to exist not only with regard to plea bargaining but also with regard to other crime topics (for example, criminal sanctions). However, research findings reveal that when appropriately analyzed, public attitudes are far from being homogeneous. (10) Third, it is difficult to pinpoint exactly how the public perceives plea bargaining due to the existence of considerable variation on many of its central characteristics. Plea bargaining practices may vary with respect to procedural features, the parties directly involved, their specific role in the negotiations, the kinds of concession offered, the stage in the criminal process in which the negotiation may be conducted, and the type of offenses to which it is applied. …

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