Book Review: Jury trials and plea bargaining: A true history
| Author | Kay Levine |
| DOI | 10.1177/146247450700900206 |
| Date | 01 April 2007 |
| Published date | 01 April 2007 |
| Subject Matter | Articles |
Saleilles, R. (1911) The individualization of punishment. London: William Heinemann.
Young, P. (1976) ‘A sociological analysis of the early history of probation’, British Journal
of Law and Society 3(1): 44–58.
Ros Burnett
University of Oxford, UK
Jury trials and plea bargaining: A true history, Mike McConville and Chester L. Mirsky.
Oxford: Hart Publishing, 2005. 364 pp. £35.00. ISBN 1–84113–516–X/
9781841135168.
The 2005 publication of Jury trials and plea bargaining marks a new round in the
ongoing debate surrounding the ancestry of the modern practice of plea bargaining.
While other scholars have highlighted court personnel (Fisher, 2003) or social strife
(Vogel, 1999) as the source of this innovation, authors Mike McConville and Chester
Mirsky argue that plea bargaining began in response to shifts in the political economy
that characterized urban America just before the Civil War. For them, changes in the
roles and responsibilities of city politicians vis-a-vis the electorate, rather than changes
in the courts themselves, account for the onset of deals between prosecutors and
defendants in criminal cases.
The argument unfolds over 14 chapters and self-consciously situates itself in the larger
literature about criminal court practices in the mid-19th century. The authors begin by
explaining the ‘professionalism’ and ‘contextualist’ theories advanced by other legal
historians and historical sociologists. The professionalism hypothesis suggests that plea
bargaining emerged in the mid-19th century because the actors and the actions of the
criminal court evolved; trials became more complex, defendants received defense
attorneys and prosecutors consequently found themselves needing more certainty of
outcome (Langbein, 1979; Friedman and Percival, 1981; Feeley, 1982; Fisher, 2000,
2003). Contextualist scholars contend that certain structural modifications in the ante-
bellum social and political economy ignited prosecutors’ interest in dispensing leniency;
bargaining allowed the State to show mercy and to exercise social control simultaneously
(Hay, 1975; Steinberg, 1984, 1989; Vogel, 1988, 1999; Ferdinand, 1992). Using an
impressive amount of historical evidence gathered from court records, District Attorney
files and Secretary of State reports from New York City, McConville and Mirsky attempt
to refute both theories and to establish the causal relationship between city politics and
criminal court behavior. They achieve moderate success in this regard.
In the first half of the book the authors detail early 19th-century criminal court
practices to challenge the professionalism camp’s claims that, before plea bargaining,
trials were messy and quick, lawyers infrequent and incompetent, and police uninvolved
and unprofessional. The authors reproduce (sometimes in the original handwritten
form!) documents from dozens of case reports and District Attorney files to show that,
at least some of the time and in some cases, evidence was collected by police rather than
by private citizens, the questioning of witnesses at trial was conscientious and strategic,
the defendants were represented and the victim’s ability to prosecute was not determined
solely by wealth. In so doing, they successfully call into question some of the
foundations of the professionalism hypothesis.
PUNISHMENT & SOCIETY 9(2)
214
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