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Book Review
| Mike McConville and Chester L. Mirsky, Jury Trials and Plea Bargaining: A True History, Oxford and Portland, Oregon: Hart Publishing, 2005. Pp. v + 364. $70.00 (ISBN 1-84113-516-X).
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| The vast majority of criminal cases result in guilty pleas, rather than jury verdicts—a situation that has existed since the nineteenth century. Mike McConville and Chester L. Mirsky trace the rise of plea bargaining in New York City to the mid-1800s and challenge several historical explanations for this transformation of the criminal process. They present an interesting critique of existing analyses and skillfully combine empirical study of case data with discussion of the social and political context in which nineteenth-century legal actors developed their strategies. Among the book's minor flaws is the overuse of very long quotations from the case files. A few well-chosen examples would have added narrative interest without distracting from the argument. Nevertheless, McConville and Mirsky have produced a significant work. |
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The book first criticizes the "professionalization" thesis, which attributes plea bargaining to the advent of trained lawyers and sophisticated police investigations. McConville and Mirsky contend that neither trial practices nor police techniques underwent a significant shift between 1800 and 1865. In the early 1800s, when jury dispositions still predominated, trials were "rational legal events which occurred in a professional setting" (138). While advocates of the professionalization thesis give early lawyers too little credit for playing a frequent and active role, they also overemphasize the influence of forensic science in later decades. According to McConville and Mirsky, "[r]eorganization of the police [in 1845] did not mean the presence of any significant methodological advances which so improved the quality and reliability of the prosecution's evidence as to make trials redundant" (247). |
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Another functionalist argument—the "case pressure" thesis that George Fisher recently revived—identifies the self-interest of judges, prosecutors, and defense lawyers in reducing their workloads as the most likely explanation for plea bargaining's rise. McConville and Mirsky reject this explanation, as well. They contend that the criminal caseload in New York expanded more slowly than did guilty pleas and that increased court days and prosecutorial resources compensated for the growing volume of cases. Furthermore, in their view, the large number of indictments that New York prosecutors pigeonholed demonstrated Tammany Hall's ability to prevent the arraignment of its loyalists, rather than the existence of a hopeless backlog of work. McConville and Mirsky do not convincingly rebut Fisher's claim that plea bargaining appealed to judges because it allowed them to lighten the criminal docket to offset an expansion in civil litigation. Nevertheless, their book highlights some weaknesses in the case pressure thesis. |
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Finally, the authors suggest the inadequacy of contextual accounts that neglect data from the courts in favor of an emphasis on ideology and social class. Such accounts depict plea bargaining as a strategy that allowed the elite to maintain its power with displays of "episodic leniency" toward criminal defendants (8). McConville and Mirsky agree that the transformation of criminal justice did not occur within a hermetic world of courts and lawyers. However, they insist that data collection must precede theory, rather than the other way around (332), and the methodological synthesis they achieve is refreshing. |
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Based on careful study of prosecutors' files, published case reports, the court minute book, and other sources, their work introduces the reader to the procedures of New York courts at the beginning of the nineteenth century. Jury trials in their heyday featured arguments based on precedent and rigorous adherence to established procedures. They do not appear to have been slipshod events run by amateurs, nor were they a tool of class oppression. People who lacked wealth and power could use the courts to pursue thieves, as well as perpetrators of violent assaults. |
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By 1829, the penal code enabled prosecutors to seek guilty pleas to lesser-included offenses. However, McConville and Mirsky's data indicates that charge bargaining was not common until mid-century. Around 1850, individualized determinations rooted in legal formalism were supplanted by a new criminology that used ethnicity and class as generalized markers of dangerousness and by a system of case disposition that largely dispensed with proof. When the shift to charge bargaining occurred in New York, it arose from the District Attorney's desire to appear tough on crime, while simultaneously doing the bidding of Tammany Hall. After 1846, the District Attorney's status as an elected official subject to the competing demands of reformers and crooked political bosses played a decisive role in the transformation of the criminal process. |
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Plea bargaining's eclipse of jury verdicts occurred in a social and political context, and McConville and Mirsky have taken an important step toward reintegrating legal change with the extra-legal forces that shaped it. However, their chief contribution does not lie in exposing Tammany Hall's manipulation of the District Attorney to secure lenient outcomes for its criminal constituency in the second half of the 1800s. Others, including myself, have previously described this situation. Rather, they break new ground by showing that prior to the era of machine politics, the legal system embodied a surprising degree of fairness and professionalism. |
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| Carolyn B. Ramsey
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| University of Colorado Law School |
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