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