The Structure of Bargaining Sequences

Abstract

Researchers agree that plea bargaining refers to courtroom transactions in which there is an exchange between the prosecution and defense in criminal cases. A consistent and common observation is that defendants who plead guilty receive some dispositional “consideration” from the state, which, in turn, gets sure convictions with less expenditure of time and money than going to trial (Alschuler, 1968: 50; Baldwin and McConville, 1977: 23; Bottoms and McClean, 1976: 123; Feeley, 1979c: 185; Grosman, 1969: Chapter 7; Klein, 1976: Chapter 1; Miller et al., 1978: xii).1 However, such a definition does not cover the gamut of activities that actually occur as part of plea bargaining (Feeley, 1979a: 199–200). For example, the definition covers situations in which charges and/or sentences are reduced in exchange for guilty pleas. But district attorneys and defense lawyers also use the term to refer to negotiating charge dismissals, continuances, and trials, where a consideration or concession is not traded for a guilty plea (McDonald, 1979: 289; Feeley, 1979b: 462). The definition also fails to capture distinctions between (a) perfunctory discussions in which there is an exchange that is standard or routine procedure but where no overt discussion of the offense and the offender occurs (Feeley, 1979c: 190), and (b) protracted negotiations in which seemingly adversarial sides are taken on these issues before an agreement is reached (e.g., Buckle and Buckle, 1977: 86; Eisenstein and Jacob, 1977: 32). In summary, as Feeley (1979a: 200) has observed, “If plea bargaining is the generic term for negotiation in the criminal process, then we need a richer vocabulary for generating typologies and exploring in greater detail the process of nontrial.”