Book Review: Jury Trials and Plea Bargaining: A True History
| Author | Milton Heumann |
| Published date | 01 November 2006 |
| Date | 01 November 2006 |
| DOI | http://doi.org/10.1177/1748895806068584 |
| Subject Matter | Articles |
Mike McConville and Chester L. Mirsky
Jury Trials and Plea Bargaining: A True History
Oxford and Portland, OR: Hart Publishing, 2005. 364 pp. £35.00 ISBN
1–84113–516-X (hbk)
•Reviewed by Milton Heumann, Rutgers, The State University of New
Jersey, USA
DOI: 10.1177/1748895806068584
Many years ago, a judge told me, in the classic reversal—some would say
perversion—of our view of courts, that trials were not unnecessary in the trial
courts, but were in fact ‘necessary adjuncts’ to the pleas that characterized the
courts. McConville and Mirsky’s Jury Trials and Plea Bargaining is an in-
credibly ambitious attempt to engage with the origins of plea bargaining, to
explain how trials became necessary adjuncts in our system. Employing rich
data sets from multiple sources concerning the disposition of cases in New
York City’s Court of General Sessions in the 19th century—and doing a
massive amount of work with these data sets—the authors provide enough data
to impugn two of the prevailing theses about plea bargaining’s origin in the
academic literature: the professionalization and case pressure theories.
The authors find that, in terms of patterns of dispositions, the 19th century
should be split roughly in half. In the first half of the 19th century, the
predominant method of case disposition was jury trial (or least predominant
between trials and pleas; they do not present dismissal data). A sea change took
place in the second half of the century, with pleas, not trials, dominating. While
only about 15 per cent of the cases were disposed of by guilty pleas in 1839, by
1865, 79 per cent were pleaded out (with the intriguing footnote of an increase
in total convictions since a number of the trials in the earlier period resulted
in acquittals).
Building on these data, the authors challenge the professionalization and
case pressure theories. The professionalization theory, promoted by Malcolm
Feeley, Lawrence Friedman and others, suggests that the trials of the first half
of the century were rather amateurish, haphazard disputes characterized by lay
prosecution and straightforward cases. As a result, trials were simple affairs
conducted by untrained folks to assess problematic evidence marshaled by
watchman-style police. According to the theory, however, in the second half of
the century, professionalization of the prosecutors and the police, coupled with
more formal opportunities to reduce statutorily prescribed punishments (i.e. to
substitute lesser charges), led to substitution of pleas for trials in many cases.
McConville and Mirsky also take aim at the old chestnut ‘case pressure
explains plea bargaining’. The argument is simple: the imbalance between
increased cases and static capacity ‘explains’ ‘plea bargaining’s triumph’
(George Fisher’s 1993 Stanford University Press book on the growth of plea
bargaining is entitled Plea Bargaining’s Triumph).
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