Jury Trials and Plea Bargaining.

• Author: Lindstrom, Richard
• Position: Book Review

MIKE MCCONVILLE AND CHESTER L. MIRSKY, JURY TRIALS AND PLEA BARGAINING: A TRUE HISTORY (Oxford and Portland, Oregon: Hart Publishing 2005) 364 PP.

During the first half of the nineteenth century, guilty pleas replaced jury trials as the primary means of disposing of criminal cases in many American jurisdictions. By the end of that century, several jurisdictions reported that ninety percent of felony cases ended in guilty pleas. As Mike McConville and Chester Mirsky point out in their study of the transformation of the criminal process in New York between 1800 and 1865, scholars' explanations for the cause of these changes have varied. Some experts have traced the turn to plea bargaining to the professionalization of the law and the police that occurred over the course of the nineteenth century. A combination of police officers who "were capable of producing reliable evidence of guilt" and experienced lawyers who could "distinguish between cases where conviction was certain and those where triable issues remained" led to the disappearance of factual disputes that would have made trials necessary. Others, according to McConville and Mirsky, have traced the development of plea bargaining to broader changes in American society and politics during the nineteenth century. To these scholars, plea bargaining has been viewed as a means of "legitim[izing] institutions of local government through ameliorative acts directed to the emerging underclass during a period of social conflict" that was created by the development of an industrialized society as well as a product of a wider search for social order that manifested itself in new roles for lawyers and the courts. McConville and Mirsky find both these arguments inadequate. They argue that such changes in the legal system can only be explained by a theory that grows out of an empirical evaluation of data that is then fitted into the political and social context of the place that produced it.

McConville and Mirsky challenge these earlier arguments by examining a variety of data from courts in New York City during the first half of the nineteenth century, including prosecution case files produced by the District Attorney's office, case reports prepared for official publication, data produced for the Court Minute Book, and statistics produced by the Secretary of State. This information allows the authors to begin their account with a brief explanation of how the criminal courts worked in New York at the beginning of the century. They outline the process by which cases came into the courts, how defendants were charged and found representation, and how cases proceeded at trial. Throughout this process, the authors emphasize, the courts focused on the actions and interests of the individual defendant. This focus encouraged defendants and prosecutors to choose to go to trial, since the outcomes in these settings represented a validation of this focus. By the middle of the century, however, politics and society in New York had begun to change, and the legal system changed as well. By 1850, New York City had become a teeming metropolis, filled with recent immigrants and beset by the social problems that often come with a population filled with impoverished, desperate people. The political system changed too; power shifted to Tammany Hall, a political organization that built support by claiming to meet the interests of working people and immigrants and that cemented its position by passing out patronage to its constituents. Disgust at the excesses that this patronage system produced, as well as concern about the poor living and working conditions that the changing city produced, led to the creation of a number of reform organizations aimed at assisting the poor. The legal system experienced the politicization of offices such as the district attorney...