EVALUATING RESEARCH INTO PLEA BARGAINING IN CANADA AND THE UNITED STATES - PITFALLS FACING THE POLICY MAKERS

• NCJ Number: 58636
• Journal: Canadian Journal of Criminology Volume: 21 Issue: 3 Dated: (JULY 1979) Pages: 293-309
• Author(s): F D COUSINEAU; S N VERDUN-JONES
• Date Published: 1979
• Length: 17 pages
• Corporate Author: Canadian Assoc for the Prevention of Crime
• Sale Source: Canadian Assoc for the Prevention of Crime; Institute for Scientific Information
• Publication Type: Report (Study/Research)
• Language: English
• Country: Canada
• Note: PRICE QUOTED FOR CAPC IS FOR SINGLE ISSUE REVISED VERSION OF PAPER PRESENTED TO THE WESTERN SOCIETY OF CRIMINOLOGY, SAN DIEGO (CA), FEBRUARY 1978

Annotation

MAJOR ASSUMPTIONS WHICH SHAPE THE OUTCOME OF PLEA BARGAINING POLICYMAKING IN THE UNITED STATES AND CANADIAN CRIMINAL JUSTICE SYSTEMS ARE EXAMINED.

Abstract

WHILE THE TREND IN U.S. POLICYMAKING WITH REGARD TO PLEA BARGAINING HAS BEEN TOWARDS LEGITIMIZATION AND REGULATION, THE MAJOR DRIFT IN CANADIAN POLICYMAKING HAS BEEN TOWARD STRICT DISAPPROVAL AND EVEN RIGOROUS SUPPRESSION OF THE PRACTICE. ONE OF THE MOST PERSISTENT FLAWS IN THE POLICYMAKING PROCESS APPEARS TO BE A LACK OF AN OPERATIONAL DEFINITION OF PLEA BARGAINING, AND ONE OF THE MAJOR FACTORS CONTRIBUTING TO THE LACK OF CONCEPTUAL CLARITY IN THE PLEA BARGAINING LITERATURE IS THE ABSENCE OF EMPIRICAL RESEARCH BASED UPON ACTUAL OBSERVATION OF THE PRETRIAL INTERACTION OF DEFENSE AND PROSECUTING ATTORNEYS. EMPIRICAL KNOWLEDGE ABOUT SUCH INTERACTION COMES FROM INFERENCE FROM SECONDARY SOURCES SUCH AS THE RAW RATES OF GUILTY PLEAS IN A GIVEN JURISDICTION, INTERVIEWS OR QUESTIONNAIRES WITH VARIOUS ACTORS IN THE PRETRIAL PROCESS, OBSERVATIONS OF THE COURTROOM DRAMA, AND CASE FILES. SOME OF THE ASSUMPTIONS UPON WHICH U.S. POLICYMAKERS HAVE TAKEN DECISIVE ACTION INCLUDE THE BELIEF THAT PLEA BARGAINING IS A NECESSARY EVIL IN THE CONTEXT OF A CRIMINAL JUSTICE SYSTEM BURDENED WITH HUGE CASELOADS, AND THE NOTION THAT ANY INCREASE IN THE TRIAL RATE WILL AUTOMATICALLY NECESSITATE A COSTLY INCREASE IN COURT RESOURCES. WHILE IT IS ASSUMED THAT MANY OF THE PROBLEMS BESETTING COURT SYSTEMS ARE OF RELATIVELY RECENT ORIGIN, AND THAT THE HIGH RATES OF PLEADING GUILTY ARE A MODERN PHENOMENON, SCANT DATA EXIST WITH WHICH TO ASSESS THIS BELIEF. A CRITICAL FLAW HAS BEEN THE FAILURE TO EXAMINE THE PRACTICE OF PLEA BARGAINING WITHIN THE BROADER CONTEXT OF THE TOTAL CRIMINAL JUSTICE SYSTEM, AND TO INVESTIGATE THE IMPLICATIONS OF CHANGE WITHIN THE PROSECUTORIAL COMPONENT OF THE JUSTICE SYSTEM FOR 'BARGAINING' PRACTICES WITH THE POLICE, THE JUDICIARY, AND CORRECTIONAL AUTHORITIES. A MAJOR PRIORITY IN THE DECISIONMAKING PROCESS SHOULD BE THE DEVELOPMENT OF A BROAD SYSTEMS APPROACH TO THE WHOLE AREA OF CRIMINAL JUSTICE RESEARCH AND POLICYMAKING; THE IMPLICATIONS OF PLEA BARGAINING MUST BE EXAMINED FROM THE POINT OF VIEW OF THE WHOLE RANGE OF CRIMINAL JUSTICE SYSTEM AGENCIES, INCLUDING (AT LEAST) THE POLICE, PROBATION OFFICERS, PROSECUTORS, DEFENSE ATTORNEYS, THE JUDICIARY, AND PAROLE BOARDS; THERE MUST BE AN APPRECIATION OF THE NEED FOR COMPARATIVE RESEARCH IN THE AREA OF PLEA BARGAINING; AND A VARIETY OF CONCRETE RESEARCH METHODOLOGIES SHOULD BE DEVELOPED, SUCH AS A COMPARATIVE COHORT STUDY WHICH TRACES THE FLOW OF ACCUSED PERSONS THROUGH EACH PHASE OF THE CRIMINAL JUSTICE PROCESS, WHICH WOULD NECESSARILY INCLUDE DIRECT OBSERVATION OF THE PLEA BARGAINING PROCESS ITSELF. FOOTNOTES SUPPORT THE TEXT. (MHP)