Politics and Plea Bargaining: Victims' Rights in California

By Candace McCoy | Go to book overview

Notes
A collection of articles chronicling the many strands of plea bargaining research up to 1979 is the special Law and Society Review volume on plea bargaining research, Volume 13, No. 2 (Winter 1979).
Miller, McDonald, and Cramer, note 8 below, pp. 10-13. Readers are cautioned to be skeptical of local claims that plea bargaining has been eliminated. As with other discussions of the guilty plea process, assessment of such claims must begin with agreement on exactly what the "plea bargaining" that has been eliminated involves. If "plea bargaining" means "sentence bargaining" or "charge bargaining," either of these practices can be eliminated while simultaneously encouraging the other. If "plea bargaining" means explicit discussion among attorneys or with the judge, this may be eliminated although defendants will still plead guilty as charged because they implicitly understand the sentences they will receive.
See discussion of state reform efforts in Chapter 2. A brief description of the Alaska evaluation is also offered in Michael L. Rubinstein and Teresa J. White , Alaska's Ban on Plea Bargaining, 13 LAW & SOC'Y REV. 367 ( 1979).
Milton Heumann, A Note on Plea Bargaining and Case Pressure, 9 LAW & SOC'Y REV. 515 (Spring 1975) at 515.
Pamela Utz, Settling the Facts ( Lexington, MA: Lexington Books, 1978.) Other works describing plea bargaining as shared professional assessment of facts and law, rather than adversarial wrangling, are covered in notes 8 and 11 below.
Douglas Maynard, Inside Plea Bargaining: The Language of Negotiation ( New York: Plenum Press, 1984), p. 170.
Ibid., p. 199.
Herbert S. Miller, William F. McDonald, and James A. Cramer, Plea Bargaining in the United States ( Washington, DC: National Institute of Law Enforcement and Criminal Justice, 1978). California studies are many. A history of plea bargaining in Alameda County from 1870 through 1910 is found in Lawrence Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 ( Chapel Hill: University of North Carolina Press: 1981). Studies of particular California prosecutor or defense offices and their bargaining practices include Lief H. Carter, The Limits of Order ( Lexington, MA: Lexington Books, 1974); Jerome Skolnick, Social Control in the Adversary System, 11 J. CONFLICT RESOLUTION ( March 1967); Lynn Mather, Plea Bargaining or Trial? ( Lexington, MA: Lexington Books, 1979); Utz, Settling the Facts; and Maynard, Inside Plea Bargaining, among others.

An excellent overview of plea bargaining, based on California observations but applicable generally, is Arthur Rosett and Donald R. Cressey, Justice by Consent: Plea Bargains in the American Courthouse ( New York: J. B. Lippincott, 1978). See also Donald J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial ( Boston: Little, Brown, 1966).

Malcolm Feeley, The Process Is the Punishment ( New York: Russell Sage, 1979). A slightly dissonant note is sounded by Douglas Maynard. Minor misdemeanors may be handled as Feeley describes, but, at least in the California Municipal Court Maynard observed, misdemeanors in which a jail term was technically possible were the subject of complete and careful negotiations among attorneys and judges. Maynard, Inside Plea Bargaining. Another op-

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