Taming the System: The Control of Discretion in Criminal Justice, 1950-1990

By Samuel Walker | Go to book overview

perceptions of the process. There was no change, however, in the disposition of cases or the ultimate sentences. 80 Given the widespread perception that plea bargains are unfair--on the part of both defendants and the public--this is a modestly important improvement.


Written Plea Agreements

Yet another reform is the signed plea agreement. The terms of the bargain are committed to writing and the defendant signs a statement verifying that the agreement is voluntary. McDonald found this to be a rather common practice: the specific terms of pleas were set forth in 71.1 percent of all cases in the six cities. Practices varied widely from jurisdiction to jurisdiction, however. All plea agreements were set forth in writing in Tucson and in 98.6 percent of the cases in Seattle; but this was true in only 43.3 percent of the cases in New Orleans and in none of the cases in El Paso. 81

As is the case with judicial inquiry, however, the signed agreement is the end product of a negotiating process. Putting it in writing may eliminate misunderstanding later but does not curb any coerciveness in the first instance.


Conclusions

In terms of controlling discretion through formal rules, the subject of plea bargaining inspires considerable pessimism. Attempting to abolish plea bargaining outright appears to be futile. Controlling the decision to charge through bureaucratic means, on the other hand, produces very mixed results. In some instances it moves discretion upstream or downstream, with results that are not necessarily desirable. Procedural reforms, meanwhile, do not touch the substance of negotiated pleas. Plea bargaining, in short, is an extremely elusive phenomenon which cannot be reduced to a single decision point that can be isolated and controlled.

This may be an overly pessimistic conclusion. The attempt to control discretion in plea bargaining has yielded some gains. As is the case with police discretion and bail setting, we have succeeded in bringing out into the open a critical decision affecting individual liberty. We now have a realistic understanding of what goes on between arrest and trial. Knowledge is wisdom and if we have a strong appreciation of the

-108-

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Taming the System: The Control of Discretion in Criminal Justice, 1950-1990
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Acknowledgments vii
  • Contents ix
  • 1 - Discretion and Its Discontents 3
  • 2 - Police Discretion 21
  • Conclusions 52
  • 3 - The Two Bail Reform Movements 54
  • Conclusions 79
  • 4 - The Plea-Bargaining Problem 81
  • Conclusions 108
  • 5 - Sentencing Reform 112
  • Conclusions 141
  • 6 - A System Tamed? an Interim Report on the Control of Discretion 145
  • Conclusion 156
  • Notes 157
  • Index 185
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