The relationship between public perceptions of crime seriousness and support for plea-bargaining practices in Israel: a factorial-survey approach.

• Author: Herzog, Sergio

The settlement of criminal cases through bargained guilty pleas has been the focus of increasing research interest over the past few decades. Generally, a plea bargain is reached through an informal process of negotiation in which the prosecutor and the defense counsel reach an out-of-court settlement. In such a settlement, the defendant admits guilt in return for some concession on the part of the prosecution (e.g., reducing the number and/or seriousness of the original criminal charges, or recommending a more lenient punishment than would otherwise be expected). From the prosecutor's viewpoint, plea bargaining results in speedy and certain conviction, especially when the evidence against the defendant is somewhat weak, thereby avoiding the possibility of acquittal in court, not to mention cost of the trial in terms of time and resources. From the judge's point of view, plea bargaining reduces the workload of the court. Research suggests that benefits such as these have led to increasing resort to plea bargaining. Indeed, in some jurisdictions, a vast majority of criminal defendants plead guilty after negotiation between the parties as a matter of course. (1)

However, despite its high frequency, plea bargaining remains one of the most controversial procedures in the criminal justice system; some commentators perceive it as an inevitable and even desirable practice, (2) whereas others consider it to be pernicious and immoral. (3) Such negative views of plea bargaining have led to attempts to eliminate it completely, or to forbid its use for selected offenses. (4)

In the context of this controversy, it is commonly argued that the public is generally located in the anti-plea bargaining camp, viewing it often with suspicion and great distaste. (5) This claim is based on the premise that members of the public abhor injustice and that, in their opinion, plea bargaining prevents justice from being served. Because a negotiated plea to a lesser offense or to a lesser punishment invariably leads to a lesser sentence, plea bargaining allows offenders to receive lesser punishments than they would have received had the prosecution proved the more serious offense at trial. Accordingly, the lay public is expected to voice disapproval when the judicial system lets an offender escape from a relatively serious punishment simply because an agreement between his/her defense counsel and the prosecutor has been reached. (6) Because the public tends to concur with conservative "law and order" advocates who favor tough policies for criminals, (7) it is often assumed that the public will condemn the practice of plea bargaining for being soft on offenders by virtue of the relatively lenient sentences handed down on offenders who admit guilt as a result of plea bargaining. (8)

THE PRESENT STUDY

The main premise of the present study is that, although the assertion that the public does not like plea bargaining seems logical, the assumption of general and uniform disapproval of this practice may not be valid and, therefore, needs to be tested. First, with the exception of a study by Cohen and Doob, (9) there has been no direct empirical investigation of such public perceptions. Second, homogeneous public views are often assumed to exist not only with regard to plea bargaining but also with regard to other crime topics (for example, criminal sanctions). However, research findings reveal that when appropriately analyzed, public attitudes are far from being homogeneous. (10) Third, it is difficult to pinpoint exactly how the public perceives plea bargaining due to the existence of considerable variation on many of its central characteristics. Plea bargaining practices may vary with respect to procedural features, the parties directly involved, their specific role in the negotiations, the kinds of concession offered, the stage in the criminal process in which the negotiation may be conducted, and the type of offenses to which it is applied. (11) The first hypothesis of this study deals with plea bargaining variability:

If a wide range of plea bargaining practices are presented to respondents for evaluation, public disapproval for plea bargaining will not be homogenous, as generally assumed. On the contrary, considerable heterogeneity will be found in public perceptions of such procedures.

In this study, a factorial survey approach was used in order to take into account the variability of plea bargaining practices. As will be explained later, (12) the factorial survey approach involves presenting respondents with short, multidimensional descriptions of complex phenomena (such as plea bargaining) for their evaluation. (13) This method overcomes many of the limitations of other, albeit simpler, survey methods used for assessing public perceptions of plea bargaining practices. (14)

It should be emphasized that plea bargaining does not constitute an end in itself, but rather a judicial means for settling criminal cases out of court. The second hypothesis of this study takes into account the wide variety of criminal offenses that might be subject to plea bargaining agreements:

Public perceptions of plea bargaining will be significantly affected by public attitudes towards the type of criminal offense settled by such an agreement. In other words, heterogeneous public attitudes toward different criminal offenses, ranging theoretically from complete approval to complete disapproval, will lead to heterogeneous public attitudes toward the plea bargaining practices used in settling them.

This hypothesis allows for the possibility of a linear relationship between public attitudes toward various plea bargaining practices and types of crime; the greater the public disapproval toward the criminal act, the greater the public disapproval for a negotiated out-of-court settlement. (15) Operationally, variation in public attitudes toward various criminal offenses is usually assessed in terms of the perceived seriousness of such offenses. The appropriateness of this approach is exemplified in the following brief review of crime-seriousness studies.

CRIME-SERIOUSNESS AND PUBLIC ATTITUDES TOWARD PLEA BARGAINING

Analysis of public perceptions of the seriousness of criminal offenses has been featured as a major subject of criminological research since the publication of Sellin and Wolfgang's influential work, The Measurement of Delinquency, in 1964. (16) Typically, such research involves the deployment of surveys requiring respondents to evaluate criminal offenses by their perceived seriousness. Findings in this area help shed light on topics such as individual and societal reactions to, and evaluations of, crime, cultural belief systems, the role of law in the society, and the relationship between seriousness of a crime and punishment. (17)

Such studies point to the existence of wide general agreement and stability across different social sectors and population groups with regard to the relative seriousness of behaviors considered to be criminal. (18) Because public conceptions of seriousness appear to emphasize the consequences of the crime and the harm inflicted on victims, crimes of violence (especially those in which the victims die or are severely injured) are usually perceived by the public as the most serious offenses, followed by (in descending order) property, white-collar, and victimless crime. (19) Research has also shown that the greater the perceived seriousness of an offense, the lower the level of disagreement among respondents, as expressed by the dispersion of values around the means; hence, the low variation regarding the perceived high seriousness of violent offenses. (20) These findings lend basic support to the consensus model of the criminal law, which predicts a close match between the attitudes of various social groups toward the definition of certain acts as criminal offenses, their perceived seriousness, and the reflection of this agreement in the criminal law. (21)

Perceptions of crime seriousness have been shown to be a reliable proxy for public attitudes (approval vs. disapproval) toward criminal offenses. (22) Accordingly, a reformulated version of the second hypothesis predicts an association between crime-seriousness perceptions and public attitudes to plea bargaining:

Heterogeneity in public perceptions of crime seriousness will be associated with heterogeneity in public perceptions of plea bargaining proceedings. A significant negative linear relationship is expected between public perceptions of crime seriousness and public support for plea bargaining practices. More specifically, public approval of plea bargaining in the case of offenses usually perceived to be more serious (i.e., violent offenses) will be significantly lower than in the case of offenses usually perceived to be less serious (i.e., victimless offenses), even to the point of showing support for plea bargaining in such cases. (23)

POLICY IMPLICATIONS

This study has clear implications for legislative and judicial policy. First, the views of the public at large regarding judicial practices such as plea bargaining are an important factor in the considerations and deliberations of the criminal justice system. (24) Indeed, it is crucial for the judicial system to enjoy the respect of those who are served by it. (25) Research has shown that public preferences and beliefs, particularly concerning crime seriousness, influence policy decisions in the criminal justice system. (26) Odegard emphasized popular support as a central component of the concept of legitimacy, his implication being that policy mirrors people's attitudes and conforms to the sense of justice of the ordinary man or woman. (27) Accordingly, it is argued that a negative view of the judicial system and its common practices may adversely affect the public's trust in it, which, consequently, may undermine public readiness to obey the law. (28)

Second, it also important to identify those factors...