Looking Through the Guilty Plea Glass: the Structural Framework of English and American State Courts
| Published date | 01 June 1993 |
| Author | Chester Mirsky,Mike Mcconville |
| DOI | 10.1177/096466399300200203 |
| Date | 01 June 1993 |
| Subject Matter | Articles |
LOOKING THROUGH
THE
GUILTY PLEA GLASS: THE
STRUCTURAL FRAMEWORK OF
ENGLISH AND AMERICAN
STATE COURTS
MIKE MCCONVILLE
School of Law
,
University of Warwick
AND
CHESTER MIRSKY
Department of Law
,
New York University
HE
CENTRAL
theme of this article is to examine the ways in which the
a
American and English systems of criminal justice, structured and
-A- operating as guilty plea machines,’ seek to reconcile or confront the tenets
of liberal legalism which characterize each system as accusatorial, adversarial,
independent of and a check upon the law enforcement activities of the state. We
first address the effect of cultural factors on the organizing rhetoric of each
system. We then analyse the structural features of each system to explain how
guilty pleas have replaced the adversarial trial as the principal means of case
disposition. Finally, we consider the effect that the guilty plea process has on the
behaviour of police and the role of courtroom actors.
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SOCIAL &
LEGAL
LEGAL
STUDIES (SAGE, London, Newbury Park and New Delhi),
Vol. 2 (1993), 173-193
173
174
ORGANIZING RHETORIC/CULTURAL FEATURES
Both the English and American systems maintain that they protect the accused
from arbitrary accusations of the state by the requirement that inferences from
facts ’be drawn by a neutral and detached magistrate instead of ... by the officer
engaged in the often competitive enterprise of ferreting out crime’ (Johnson v.
United States,1948; see Prosecution of Offences Act, 1985). Both systems depict
judges as arbiters, individuals who do not descend into the arena of conflict (see
DPP v. Stonehouse, 1978). And lawyers are portrayed as adversaries who,
through presentation of differing perceptions of fact and law, ensure a reliable
result (Napley, 1975).
Despite the dominance of adversarial rhetoric, both systems are counter-
hegemonic and display features which are predominantly inquisitorial in nature
(see Damaska, 1986). While both systems celebrate the jury trial as the preferred
method of exercising legal rationality, their ideology and structure favours guilty
pleas over trials. Thus, while some defendants may assert their right to trial, with
a residue of acquittals and favourable rulings, most defendants (regardless of
whether there is legally sufficient evidence) are systematically discouraged from
testing the state’s evidence and relying on traditional notions of adversarialness,
as a guarantor of due process. And those who proceed to trial and are convicted
are significantly disadvantaged, in the sentences they receive.
Both systems depend principally upon a defendant’s admission of guilt in open
court to resolve the vast majority of cases. Defendants plead guilty before judges
who ally with the prosecution and, directly or indirectly, utilize methodologies
which evince close knowledge of police practices that offend against liberal
precepts. However, the methods and discourse used by each system with respect
to the guilty plea reflect divergent cultural features and traditions. These
differences shed light on the reason the English system officially condemns
plea-bargaining and denies its existence (Turner, 1970), while the American
system celebrates the practice as ’not only ... essential ... but ... highly
desirable ...’ (Santobello v. New York, 1971 ).
English judges, for the most part, are an elite group of Oxbridge-educated
males whose public practices are dominated by notions of propriety, decorum
and seemliness (Griffith, 1977). In emphasizing legal rationality, they depict the
guilty plea solely as the product of a repentant mind. Explicit charge- and
sentence-bargaining is considered by these judges to be coercive and an affront to
the dignity of the judicial system, rendering any subsequent guilty plea a nullity
(Turner, 1970). Thus, when one judge had the temerity to acknowledge the
existence of this forbidden practice, the Court of Appeal fulminated: ’We find it
quite astonishing that any [judge] should characterize what he is doing as &dquo;plea
bargaining&dquo; but even more so when it clearly was &dquo;plea bargaining&dquo;’ (Grice,
1977; emphasis added). Official discourse is concerned with sanitizing the guilty
plea to portray it in a manner which does not embarrass or implicate the
judiciary. In court, the only enquiry made of the defendant prior to the entry of a
guilty plea is ’how do you plead?’. All other enquiries, including the defendant’s
reasons for pleading guilty, are foreclosed. Once the defendant states that he/she
175
pleads ’guilty’, English judges insist that nothing else is said in their presence
which would contaminate the judicial process (Baldwin and McConville, 1977).
All other policing and counsel activity is described in terms that authorize
what is done without appearing to offend rules of voluntarism and contrition
(Atkinson, 1977). The crucial encounters between the actors that occur in the
police station, the privacy of chambers and the hallways of the court are thus
judicialized, stripped of their coercive features and recast into the studied
language of due process (Llewellyn, 1977). In this setting, codes of practice, rules
of procedure and rules as to the admissibility of evidence become mechanisms of
accounting. These instruction manuals teach the actors how to portray their
conduct so as to obtain the imprimatur of legitimacy (McConville and Baldwin,
1981; McConville et al., 1991). By contrast, American judges often consider
themselves ’loyal foot soldier[s] in the executive’s fight against crime’ (California
v. Acevedo,1991: 2226 [STEVENS, J dissenting]). For the most part, state criminal
court judges emanate from the ranks of public prosecutors, public defenders and
solo practitioners, and they openly offer ’sweeteners’ and ’discounts’ to
defendants pleading guilty, which would offend against English notions of due
process (McConville and Mirsky, forthcoming; Ryan and Alfini,1979; Miller et
al., 1978). These judges discount ’whatever might be the situation in an ideal
[adversarial] world’ and embrace ’the plea bargain [as an] important component’
of the country’s criminal justice system (Blackledge v. Allison, 1977). American
judges, however, adopt a set of legitimating rules that enable plea-bargaining to
proceed openly, in apparent conformity with due process tenets (see Alschuler,
1976). These rules include ensuring that at the time of the taking of a plea: the
defendant is represented by a lawyer (Brady v. United States, 1970); a public
record exists showing that the plea was knowing and voluntary (Boykin v.
Alabama,1969); and a promise made by the state in the course of plea-bargaining
is fulfilled (Santobello v. New York,1971).
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THE STRUCTURAL FEATURES OF ENGLISH COURTS
.:
1
While structural features endemic to the English criminal justice system mask the
guilty plea as a product of a repentant mind, an analysis of these features reveals
an
embedded alliance between the courts and the police which renders it difficult,
if not impossible, for defendants to credibly claim that guilty pleas are coerced :
and involuntary. The structural features include: first, delegating vast discretion-
ary powers to the exclusive domain of the police, including the power to stop,
search, detain and to obtain binding confessions; second, under the Police and
Criminal Evidence Act (1984) (hereinafter, PACE), limiting possible challenges to
police evidence to a narrow category of cases, and instructing the police on how
to legitimate their activities through record-keeping (and, if need be, testimony)
that conforms to the Codes of Practice, or otherwise altering legal rules to
conform to existing police practices; third, permitting a reduction in charges for
those who are contrite while otherwise restricting the charging decision to the
most serious offence possible; fourth, requiring defendants who wish to
176
challenge the actions of the police to do so at trial when the sentence benefits
gained from contrition may be lost; fifth, encouraging lawyers to participate in
pre-trial conferences which socialize adversaries into collaborating with one
another in the hope of obtaining guilty plea dispositions; sixth, authorizing
lawyers to instruct defendants in language which assures acquiescence. Each
structural feature will be examined in turn.
First, English courts liberate the police from whatever constraints ’reasonable
suspicion’ might impose upon them in forcibly stopping an individual against
her/his will, in searching for evidence and in detaining and interrogating her or
him. The absence of a limiting definition justifying detention and interrogation
practices was recognized by the Royal Commission’s 1981 Report on Criminal
Procedure which stated that while there was a risk that ’the criterion [reasonable
suspicion] could be loosely interpreted’, it was ’impracticable’ to find agreed
standards which could form the grounds for reasonable suspicion (Royal
Commission on Criminal Procedure, 1981:25). Further, although the courts
may not detain people without reasonable suspicion (Knight and Thayer, 1905),
the police may, provided they assert that the person ’volunteered’ or ’consented’.
Moreover, the police may exercise powers of continued detention when they
assert a reasonable belief that the individual might confess or that detention is
necessary to enable them to secure or to preserve evidence (Holgate-Mohammed
v. Duke, 1984; PACE, 1984: s. 37).
Police have been free to act as they...
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