Table Of ContentInside
Plea Bargaining
THE LANGUAGE OF NEGOTIATION
Inside
Plea Bargaining
THE LANGUAGE OF NEGOTIATION
Douglas W. Maynard
Universily of Wisconsin
Madison, Wisconsin
Plenum Press • New York and London
library of Congress Cataloging in Publication Data
Maynard, Douglas W., date
Inside plea bargaining.
Bibliography: p.
Includes index.
1. Plea bargaining-United States. I. Title.
KF9654.M38 1984 345.731072 84-9809
ISBN 0-306-41577-1 347.30572
©1984 Plenum Press, New York
A Division of Plenum PubliShing Corporation
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All rights reserved
No part of this book may be reproduced, stored in a retrieval system, or transmitted
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Printed in the United States of America
To JOAN
Preface
Negotiation is a ubiquitous part of social life. Some even say that social
order itself is a negotiated phenomenon. Yet the study of negotiation
as an actual discourse activity, occurring between people who have
substantial interests and tasks in the real social world, is in its infancy.
This is the more surprising because plea bargaining, as a specific form
of negotiation, has recently been the center of an enormous amount of
research attention. Much of the concern has been directed to basic ques
tions of justice, such as how fair the process is, whether it is unduly
coercive, and whether it accurately separates the guilty from the innocent.
A study such as mine does not try to answer these sorts of questions.
I believe that we are not in a position to answer them until we approach
plea bargaining on its own complex terms. Previous studies that have
attempted to provide a general picture of the process as a way to assess
its degree of justness have neglected the specific skills by which prac
titioners bargain and negotiate, the particular procedures through which
various surface features such as character assessment are accomplished,
and concrete ways in which justice is administered and, simultaneously,
caseloads are managed.
My investigation into the skills, procedures, and routines involved
in plea bargaining is aided by the use of tape-recorded negotiations that
I collected in a court in "Garden City," California. I owe a large debt to
the judges, district attorneys, public defenders, private attorneys, clerks,
bailiffs, and other personnel in the court system there. They facilitated
this study in many ways, graciously allowing my presence in delicate
situations, answering a great number of questions, and offering other
services. Of particular help were the Chief Public Defender of Garden
County, and two judges in the municipal court. My deep gratitude goes
to all of these persons, whom I cannot name for reasons of anonymity.
vii
viii PREFACE
I received important financial support during the course of my re
search. The study was initiated, and early versions of Chapters 2, 6,
and 7 were written, as part of my dissertation research while I held a
Regents' Fellowship at the University of California. Chapters 3, 4, 5,
and 8 are based on work that I did after joining the University of Wis
consin faculty; some of that work was done under the auspices of a
grant from the Graduate School.
Three persons at the University of California-Donald R. Cressey,
Thomas P. Wilson, and Don H. Zimmerman-provided inspiration,
direction, and ideas as I gathered and analyzed data and wrote my
dissertation. Their interest and enthusiasm continued even after I fin
ished the dissertation and moved away. I owe a very large debt to
Cressey, who was not only instrumental in helping me obtain access to
the Garden City court (see Chapter 1) but who also made extensive
editorial comments on a draft of this manuscript, so that much of what
is readable is due to his efforts. Furthermore, his own work on plea
bargaining and thoroughgoing sociological approach to the topic set the
stage for much of what I have done. I owe no less of a debt to Wilson
and Zimmerman, whose teaching and research stimulated my interest
in the study of face-to-face interaction, ethnomethodology, and conver
sational analysis. They also introduced me to the work of Harold Gar
finkel, Erving Goffman, and Harvey Sacks, all of whom I cite repeatedly
in this study, although a citation count probably would not measure the
extent of their influence. Not least important, Wilson and Zimmerman
provided encouragement in many nonintellectual ways.
A number of other people have provided detailed criticisms on
drafts of one or more of the chapters. At the University of Wisconsin,
Howard Erlanger, Warren Hagstrom, Jack Ladinsky, Gerald Marwell,
and Aage Sorensen, none of whom is very familiar with the style of
work I do, nonetheless exposed core problems in some of my early
analyses and made percipient suggestions for improvement. From a
variety of other places, Charles Goodwin, Gail Jefferson, Dave Luck
enbill, Anita Pomerantz, and Emanuel Schegloff took time to write com
ments that have been nothing short of invaluable to the development
of particular chapters. Lynn Mather, as an outside reviewer, provided
beneficial remarks on all chapters.
For typing the many drafts that I tend to write, I thank Chris Peters,
Toni Polglase, and especially Virginia Rogers. John Demetrion did an
admirable job of locating miniscule spelling and referencing errors.
PREFACE ix
The friendship and regard of four special people made some of the
rough spots involved in the experience of writing the manuscript just
smooth enough to get across. Dave Luckenbill was an endless source
of good advice on the practicalities of crafting a book. (He also let me
"borrow" what has been an indispensable resource-a copy of Deering's
California Penal Code-for the last five years.) Rich Hilbert's brand of
impracticality probably gives him one of the best listening ears I have
ever come across. I poured out many a trouble to him and he set me
right by somehow hearing what I was trying to say. Maureen Hallinan
was an enthusiastic and needed local source of support. And Joan May
nard was simply an inseparable part of the sustained effort required to
do all of the tasks involved in, and surrounding, the writing of this book.
Parts of this manuscript, in different forms, have appeared in Human
Studies, Law and Society Review, Semiotica, Social Problems, and The Socio
logical Quarterly.
Contents
Chapter 1. The Language of Negotiation .. .... .. .. .. .. .. .. .. .. .. . 1
The Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Collection of Data and the Setting . . . . . . . . . . . . . . . . . . . . 13
Methods ................................................. 17
Plan of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Chapter 2. The Courtroom Context of Plea Bargaining . . . . . . . . . . 29
Bureaucracy and Social Organization . . . . . . . . . . . . . . . . . 29
Interactional Practices in the Courtroom . . . . . . . . . . . . . . 31
Social Order in the Courtroom . . . . . . . . . . . . . . . . . . . . . . . . 46
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Chapter 3. Frame Analysis of Plea Bargaining . . . . . . . . . . . . . . . . . . . 55
The Structural Situations of Defense and Prosecution
Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Framing Practices as Strategic Action . . . . . . . . . . . . . . . . . 61
Dramaturgy in Plea Bargaining .. .. .. .. .. .. .. .. .. .. .. .. 69
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Chapter 4. The Structure of Bargaining Sequences . . . . . . . . . . . . . . 77
The Bargaining Sequence .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 78
Bargaining Sequences in Relation to Other Aspects
of Present Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Bargaining Sequences in Relation to Subsequent
Negotiations ............................................. 100
xi
xii CONTENTS
Chapter 5. Routine and Adversarial Justice 103
Routine Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Adversarial Discourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
The Basic Organization of Plea Bargaining ........... 114
Chapter 6. Descriptions and Assessments of Defendants ....... 119
Person-Reference and Person-Description ............ 120
Person-Descriptions as Justifications . . . . . . . . . . . . . . . . . . 121
Conclusion: Person-Descriptions and Activity
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Chapter 7. Modeling Sentencing Decisions . . . . . . . . . . . . . . . . . . . . . . 139
Theory and Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Sentencing Decisions ................................... 144
Methodological Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Patterns of Commonsense Reasoning . . . . . . . . . . . . . . . . . 156
Conclusion ............................................... 162
Chapter 8. A Discourse System for Negotiation ................. 165
Theories of Plea Bargaining ............................ 166
Decision-Making Patterns in Plea Bargaining ........ 171
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Chapter 9. Inside Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Plea Bargaining and Bureaucracy . . . . . . . . . . . . . . . . . . . . . . 201
Plea Bargaining as a Produced Set of Discourse
Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Inside Activity and Outside Concerns ................ 205
Plea Bargaining as an Inside Institutional Activity . . . 207
Appendix 1. Adapted Transcribing Conventions . . . . . . . . . . . . . . . . . . . 209
Appendix 2. The Frank Bryan Case .................................. 211
Appendix 3. The Maria Dominguez Case ........................... 215
