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.
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.