Vol. 4, No. 4 (April, 1994), pp. 54-55.

POLITICS AND PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA by Candace McCoy. Philadelphia: University of Pennsylvania Press. 213 pp. Cloth $36.95. Paper $18.95.

Reviewed by Liane C. Kosaki, Department of Political Science, University of Wisconsin, Madison.

At the risk of sounding like Andy Rooney, have you ever had the experience of ordering something and finding out that it wasn't what you thought it would be? That's the feeling that I got from reading Candace McCoy's book. The title suggests that the book is about how victims react to plea bargaining in California. Instead, the book is really about the effects of the passage of Prop. 8, called the "Victims' Bill of Rights," on the administration of criminal justice in California.

There are three major topics in this book. The first has to do with the history and implementation of Prop. 8. The second deals with the effects of Prop. 8. The third theme, which provides a context for the entire book, focuses on a theoretical discussion of plea bargaining.

McCoy begins the book with a long discussion of the utility of plea bargaining. Recognizing the bad image that plea bargaining has among the public, she argues that plea bargaining is actually very beneficial. "Good" plea bargaining is plea bargaining which is thoughtfully and carefully done, which considers and weighs the evidence and the crime, and which then proceeds to set the appropriate charge and sentence. In doing this, "good" plea bargaining can "achieve justice for both the litigants and the public." McCoy continues, "Because cases are negotiated with regard to legal rules and lawyers' predictions of what will probably happen at trial, negotiated settlements can also reflect the values and standards embodied in the substantive law" (p. xiii).

What happened with the proposal and passage of Prop. 8, however, was a considerable weakening of the potential to practice "good" plea bargaining. In her discussion and analysis of the second theme of the book, the history and implementation of Prop. 8, McCoy weaves a fascinating tale. Her examination of the history of the proposition reveals that the major goal for the backers of Prop. 8 was to increase the punitiveness of the criminal courts. Thus, although the proposition was labeled and sold to voters as a "victims' bill of rights," in fact there were a lot of provisions in the proposition which had nothing to do with victims' rights. The provisions of most interest to McCoy were those which ostensibly banned plea bargaining and lengthened sentences. These provisions are of interest because the plea bargaining ban would presumably lead to increased trials, giving victims their "day in court." Enhanced sentences were also seen as pro-victim since they would presumably result in longer sentences which would be consistent with victims' demands for retribution.

The standard wisdom regarding reform of the criminal courts is that reforms are unlikely to have any effect or, if they do have an effect, the effect is not the one expected. Not surprisingly, McCoy's analysis of the effects of these two provisions reveals that the effects did not live up to the promise of the proposition. The plea bargaining ban was limited to plea negotiations after an indictment or information was filed, and the proposition included exceptions for situations which were so vaguely defined that they constituted a large loophole. Thus, the effect of the plea bargaining "ban" was not to reduce the practice, but simply to increase the number of plea bargains that were conducted in the earlier stages of the process. Moreover, the overall level of plea bargaining increased. This increase was attributed to the additional coercion that could be exercised against a defendant reluctant to plead: failure to plead at the earlier stage meant that the chances to plead later were foreclosed by the provisions of Prop. 8. The analysis of the sentencing enhancement yielded results which were also consistent with the standard wisdom; in this case, McCoy found that felony sentence lengths were not significantly affected by the proposition. This is because sentence lengths were already increasing before the passage of the proposition.

Though these two features -- the plea bargaining ban and the sentence enhancements-- were touted as "pro-victim" measures, McCoy argues that the proposition also failed to achieve this purpose as well. To the extent that victims wanted a chance to participate in the prosecution of their cases, the plea bargaining "ban" effectively pushed cases to the early stages of the process where victims are least likely to be involved. And if one believes that victims want more punitive sentences (a belief that I will discuss in more detail later) then the sentence enhancements were also a failure.

Page 55 follows:

Given these results, we might conclude that Prop. 8 was a big disappointment to its sponsors. The strength of McCoy's analysis, however, is that she probes beyond the obvious. Her examination of the history of Prop. 8 in fact leads her to conclude the opposite. The backers of Prop. 8 might have been interested in victims' rights, but they were much more interested in increasing the certainty of conviction and punishment of criminals. Prop. 8's backers wanted to reform a court system that they perceived to be "soft on crime" to one which was more punitive. In this context, the movement of plea bargaining to earlier in the process where more defendants are likely to plead is likely to be a success. This is especially the case when the early plea is coupled with the coercion of sentence enhancements should the defendant decide to go to trial. Thus, McCoy argues that the backers of Prop. 8 were very successful in getting what they wanted-- a system which could convict and incarcerate defendants more quickly.

McCoy's analysis of the effects of Prop.8 are interesting, well-argued, and nicely supported with data. Her discussion of the history of Prop.8 is also fascinating. These are the strengths of the book. I think the weakness of her book lies in the theoretical discussion of plea bargaining, and in her incorporation of victims' rights into the book.

I think there are a lot of people who would take issue with McCoy's discussion of plea bargaining. Despite her argument that plea bargaining is a "good" process because it is conducted according to the rules of law and can be based on a careful evaluation of the evidence, I was not convinced because I think the argument misses an important point about the public's objections to plea bargaining. I think those objections have less to do with the quality of the outcomes (although there is plenty of that) and more to do with the perceptions of the procedure itself. That is, the public has problems with a process which is largely secret, conducted with very little input from an important party (i.e., the victim), and based on professional judgment which might be jaded or just plain wrong. Thus, we can look at the objections to plea bargaining not as the objections of a misled and naive public, but instead as a fundamentally political argument about the nature of the process and the omission of public judgment in that process.

Even if we ignore this part of McCoy's argument about plea bargaining, I was troubled by the idealism implicit in the argument. McCoy concedes that her depiction of "good" plea bargaining is idealistic, but argues that due process re-

quirements can be transformed into requirements which can improve the process. I am not so sure. Most of these reforms would require lengthening the process. Given the quantity and quality of the cases (a lot and reasonably certain of the defendant's guilt, respectively) I don't think there's a lot of incentive to change the system.

I was also troubled by McCoy's discussions of the desires of victims. Some of the provisions of Prop. 8, for example, are discussed from the standpoint of victims' desires. I was troubled here because I think this is an area that deserves much more attention. There is very little research about what victims want from the criminal justice system. What there is suggests that, contrary to the conventional wisdom, most victims are not punitive. Moreover, it is not clear that these victims want much to do with the criminal justice system. However, there is a portion of victims who are punitive, and that portion has turned into a significant political force largely because their desires are consistent with the desires of conservative anti-crime politicians. This is the part of the movement which has been coopted, and I'm not at all sure that this portion of the movement would not have been satisfied with the effects of Prop. 8. Although McCoy devotes considerable discussion to the history of the victims' movement, I think this part of the book could have been shortened considerably. As it was, it tended to detract from the larger points about plea bargaining reform that are really central to McCoy's research.

Despite these criticisms, this is an interesting book. In looking beyond the stated purposes for reform, McCoy shows us that it is important to move beyond the explicit goals to examine the "hidden agenda" behind such reforms. Understanding that "hidden agenda" helps us to better evaluate the impacts of the reform. This is a point well worth remembering for future research.


Copyright 1994