Vol. 9 No. 10 (October 1999) pp. 440-443.
BETRAYAL OF DUE PROCESS: A COMPARATIVE ASSESSMENT OF PLEA
BARGAINING IN THE UNITED STATES AND CANADA by Hedi Nasheri,
Hedieh Nasheri. Lanham, MD: University Press of America, 1998.
Cloth $49.00. Paper $32.50. 200 pp. ISBN 0-7618-1109-5.
Reviewed by Roy B. Flemming, Department of Political
Science, Texas A&M University.
Comparison is fundamental to the creation of empirical
theory. Comparative research creates opportunities to test
seemingly well-established hypotheses in new settings. It
forces us to reconsider what we thought we knew when we
find our data from the new settings don't fit expected
patterns. It stretches our imaginations and forces us to
rethink familiar, comfortable conceptual frameworks. Plus,
it's a lot of fun. On the face of it, a book comparing
"plea bargaining" in Canada and the United States ought to
be interesting and fun, too. I'm sorry to report that
BETRAYAL OF DUE PROCESS is an example of that shop-worn but
nevertheless valid adage that a book cannot be judged by
its cover much less by its title.
The book's first mistake is its research design. A
major problem in comparative research is finding ways of
holding the number of possible intervening variables in
check. The book's premise (which some readers no doubt
will question) is that the criminal process in the United
States resembles Packer's (1968) "due process model" while
the process in Canada comes closer to his "crime control
model." The book uses limited interviews, observations,
archival information, and appellate court decisions to
compare plea bargaining and its legal context in Toronto
and Cuyahoga County (Cleveland). This choice seems to have
been a matter of convenience. Whether the two courts are
typical of other courts in their respective countries and
therefore whether they offer sufficient grounds to say
anything about national cultural differences is a big
problem, of course. A much larger one, though, is that
this choice does not "control" for institutional
differences between Canada and the United States.
The two countries differ in how they have organized
their courts and prosecution and where they have located
responsibility for the development of criminal law.
Canada's courts and prosecution are centralized. For all
but the most minor courts, the federal government through
the Ministry of Justice appoints judges to sit in both the
provincial and federal courts. The Justice Ministry
through its provincial offices also picks and employs the
prosecutors. Parliament and Canada's Supreme Court have
almost complete authority over the criminal law in the
provinces. American federalism apportions this authority
differently, as we know, and the organization of the
criminal courts and prosecution in the
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states is highly decentralized. In effect, Canada looks like
what the United States might if the U.S. Department of Justice
and federal courts had jurisdiction over the administration of
criminal law.
In my opinion, a more interesting and meaningful
comparison would have been between the U.S. Attorney's
Office in Cleveland and the Crown Prosecutor in Toronto.
The latter would be involved in a broader array of offenses
than the former but this is not an insurmountable problem
and indeed may be an advantage. More important is the
opportunity this approach creates to determine how two
comparable, formally centralized systems implement
presumably different national values. If two or more
courts and offices in other regions of the countries were
added to the design, this design would offer the chance to
determine the balance between centrifugal and centripetal
forces which Eisenstein (1978) explored so successfully in
his study of U.S. attorneys.
The book's second mistake is its numb, insensitive
feel for the subtleties and complexities of the guilty plea
process, presumably the study's dependent variable.
Despite the maturity and richness of the plea bargaining
literature, the book seems to have borrowed but not learned
from it. It tends to equate guilty pleas with plea
bargains; they are not the same things, however, even
though plea bargains are almost always guilty pleas.
Perhaps the reason for this conflation is that while the
book cites Heumann (1977) it also ignores Heumann's
critical distinction between "implicit" and "explicit"
bargaining. Implicit bargaining (to the extent bargaining
actually occurs) has more to do with mitigating
uncertainties for the participants than rewards or
sanctions. Assurances about sentencing outcomes can lead
to guilty pleas without bargains. Indeed, in some American
jurisdictions, the rewards for pleading guilty are largely
symbolic and lack real substance because stable going rates
regarding sentences in the courts facilitate expectations
of the likely sentences, the defendants' chief worry about
pleading guilty (Eisenstein and Jacob 1977; Nardulli,
Eisenstein, and Flemming 1988).
Ignoring these distinctions produces confusion or
ambiguity over whether "plea bargaining" occurs in Toronto.
The book provides only the barest sketch of the pretrial
proceedings conducted in this city's court. At these
meetings the defense lawyer and prosecutor meet with a
judge to discuss the issues affecting the decision to plead
guilty, including the likely sentence. If a guilty plea is
forthcoming, the pretrial judge takes the plea and
sentences the defendant. If there is no guilty plea, the
case is set for trial before another judge, a practice with
which the book is greatly impressed. And indeed the
appellate court opinions the book discusses seem to center
on the importance of maintaining this separation so that
the neutrality of the trial judge is not sullied by prior
involvement in a case. The point, of course, is that these
pretrial sessions reduce the uncertainty and risk of
pleading guilty. Even if defendants get nothing in terms
of charge reductions, count drops, or lesser sentences --
the currency of explicit bargaining -- this Canadian court
has constructed a process encouraging the smooth production
of guilty pleas, like many American courts.
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The book fails to describe what happens at the
pretrial sessions, so I have no idea how often implicit
bargaining becomes explicit, or even whether negotiations
occur at all, much less what the bargains might entail.
The book cites Brian Grosman's (1969) exploration of
prosecutors in Toronto yet fails to amplify or modify what
Grosman had to say. According to Grosman, charge
reductions were the coinage of plea bargaining in Toronto.
Sentencing bargaining, when it occurred, required the
cooperation of the pretrial judge. Grosman outlines a
process lubricated by mutual trust and respect among the
participants. Again this is a familiar phenomenon in large
American courts where there are stable courtroom workgroups
or in medium-sized courts with relatively cohesive
courthouse communities.
The book's third mistake is the absence of case-level
data and empirical operationalization of any of the book's
key concepts. If case-level data were available for
Cleveland and Toronto, the dispositions of their cases
could be compared, and we would have some idea of how often
guilty pleas were accompanied by charge reductions or count
drops. For a book asserting it assesses plea bargaining,
the absence of case-level data is lamentable, to say the
least. A related error is the book's attempt to portray
the origins and evolution of plea bargaining in the two
countries. Again there are simply no data to chart the
path of this phenomenon in either city, although the book
tries to overcome this obstacle in Cleveland by relying on
the Cleveland Foundation's Crime Commission report
conducted by Raymond Moley in the 1920s, one of the
classics of this genre of Progressive politics. The
absence of comparable attention in Canada leads to sanguine
suggestions there were fewer problems than in the United
States, although no empirical evidence is offered to
support these views.
One of the many puzzles of this book is that it
assumes case law and statutes will reveal which of Packer's
models the two criminal justice systems most resemble. A
coding scheme would seem in order for this task, but it was
not developed. The real problem is that the book's
historical perspective greatly complicates matters since
the book must deal with moving targets. If we grant that
guilty pleas have increased over time, as Friedman and
Percival (1981) found in their study of Alameda County in
California, has the crime control model become entrenched
in the United States? If so, how should we interpret
appellate court decisions at the state and national level
that run counter to this trend by establishing due process
rights for criminal defendants? Canada's adoption of a
Charter of Rights and Freedoms has led to decisions by its
Supreme Court that are due process oriented (Bogart 1994).
Have these decisions up-ended the crime control model in
Canada? This book is incapable of answering these
questions and much else of interest to scholars who want to
more about the guilty plea process from a comparative
perspective.
In a nutshell, this is a very disappointing book that
in my opinion contributes almost nothing to a well-
established literature, which nevertheless would benefit
from well-conceived and professionally executed cross-
national research. I can't help wondering how a
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manuscript of this quality made it through the publisher's
editorial review.
REFERENCES
Bogart, W.A. 1994. COURTS AND COUNTRY: THE LIMITS OF
LITIGATION AND THE SOCIAL AND POLITICAL LIFE OF CANADA.
Toronto: Oxford University Press.
Eisenstein, James. 1978. COUNSEL FOR THE UNITED STATES:
U.S. ATTORNEYS IN THE POLITICAL AND LEGAL SYSTEMS.
Baltimore: Johns Hopkins Press.
Eisenstein, James and Herbert Jacob. 1977. FELONY
JUSTICE: AN ORGANIZATIONAL ANALYSIS OF
CRIMINAL COURTS. Boston: Little,
Brown and Company.
Friedman, Lawrence M. and Robert V. Percival. 1981. THE
ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY,
CALIFORNIA, 1870-1910. Chapel Hill: University of North
Carolina Press.
Grosman, Brian A. 1969. THE PROSECUTOR: AN INQUIRY INTO
THE EXERCISE OF DISCRETION. Toronto: University of Toronto
Press.
Heumann, Milton. 1977. PLEA BARGAINING. Chicago:
University of Chicago Press.
Nardulli, Peter F., James Eisenstein, and Roy B. Flemming.
1988. THE TENOR OF JUSTICE: CRIMINAL COURTS AND THE GUILTY
PLEA PROCESS. Urbana, IL: University of Illinois Press.
Copyright 1999