Seung-Hee Lee
Department of Applied Linguistics and TESL
University of California, Los Angeles
Despite the heated controversy over the neutrality of the judge's role and the economic necessity of plea bargaining in the American criminal justice system, little research has investigated the actual practices through which judges administer plea bargaining sessions. This paper examines how the judge balances the normative obligation of neutrality with the bureaucratic demand for efficiency in recorded plea bargaining encounters. Through the detailed analysis of the judge's conduct, this paper investigates whether and how the judge's role influences the bargaining processes and outcomes of plea negotiations.
The data of this paper centers on two misdemeanor criminal cases in a California municipal court collected in the 1970s and involving a single judge. Both cases are audio recorded. In one case, the defendant is charged with violating section 647f of the California penal code, disorderly conduct, and section 148, resisting a public officer. The latter is the more serious of the two. Over the charge bargaining, the prosecution and the defense agreed to dismiss the 148 offense in exchange for a guilty plea to the 647f charge. Over the sentence bargaining, the prosecution and the defense ended by agreeing with a $50 fine. In the other case, the defendant is charged with violating section 487.1 of the California penal code, grand theft. She allegedly shoplifted 200 dollars worth of clothes by pinning them up underneath her dress. The defense proposes dismissal of the charge, based on the fact that her act was involuntary and perhaps due to the influence of medication. The prosecution rejects the proposed dismissal by pointing out the sophistication of her act. The attorneys ended by agreeing to put the case over to a 131.3 report, a pre-plea report.
This paper analyzes these two audio taped plea bargaining sessions by employing the methodology of conversation analysis. Conversation analysis allows a detailed examination of the moment-by-moment accomplishment of social actions through talk in interaction. Drawing on this methodology, this paper analyzes the actual practices judges employ to facilitate bargaining encounters.
The analysis demonstrates three kinds of the judge's conduct. First, the judge may display an attitude or an outlook toward the accused or aspects of the case in an embedded manner, which I refer to as displaying stance. His stance is consequential for the ways in which the attorneys take and formulate their positions at various junctures in the subsequent talk. Second, the judge can facilitate the bargaining process. He organizes an opening and a closing of the bargaining encounters, and elicits bargaining activities from the attorneys. Through the activity of agenda management, the judge accomplishes efficient processing of caseloads scheduled for the day in question. Third, the judge may move the bargainers toward resolution. He may overtly suggest a bargaining proposal, subtly intervene in the bargaining positions to show approval or disapproval, and press the bargainers to overcome obstacles. In moving the bargainers toward resolution whether overtly or subtly, the judge influences the bargaining processes and outcomes by orienting to efficiency as well as a conception of fairness and justice in each case.
The judge's contributions are shaped by the conflicting practical and normative demands of the plea bargaining system. On the one hand, the American criminal justice system values efficiency in case processing. As an alternative to a trial mode of procedure, plea bargaining is endorsed as a means of disposing of cases with less expenditure of time and money. Under the administrative demand for efficiency, judges are pressured to use plea bargaining to expedite case processing. On the other hand, the American criminal justice system obliges judges to remain neutral. The judge's role is limited to that of an independent third party to oversee the bargaining process. In orientation to such a normative obligation to serve as a neutral arbiter, judges limit their interventions and strive to maintain a posture of formal neutrality. Thus, while contributing to shaping the bargaining processes and outcomes, the judge constrains his interventions by conforming to the obligation of neutrality as balanced against the administrative demand for efficiency. Therefore, the administration of justice in plea bargaining shapes, and is shaped by, the judge's conduct as balanced between neutrality and efficiency.