Politics and Plea Bargaining: Victims' Rights in California

By Candace McCoy | Go to book overview

Chapter 7
Procedural Values: Proof and "Publicness"

The more we learn about the Is of the criminal process, the more we are instructed about its Ought.... The kind of criminal process we have depends importantly on certain value choices that are reflected, explicitly or implicitly, in its habitual functioning.

Herbert Packer, The Limits of the Criminal Sanction, pp. 150, 153.

Impact studies are often overtly empirical and covertly prescriptive. Evaluators compare what a law was intended to do with what it actually did; if they believe the intent of the law was good, they may then decry the gap between intent and practice or between law on the books and law in action. On the other hand, when evaluators dislike the intent of the law's supporters, there is a temptation to deride the entire enterprise and belittle whatever observable results were indeed achieved.

The impact study presented in this book is as susceptible to these tendencies as is any other, so some attempt to control leakage from the empirical to the normative, and vice versa, has been made. Many different sources of information about proposition politics and about the intellectual and political roots of Proposition 8 were presented, with the expectation that multiplicity of opinion and observation would produce the most well-rounded picture of the drafters' intent. Concentrating on the plea bargaining limitation of Proposition 8, the study continued in the empirical mold by presenting court statistics describing "what, in fact, the law did" and then moved to a fuzzier

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