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The voluminous legal literature on plea bargaining in criminal court in the United States is largely devoid of empirical foundation and condemnation of the procedure typically rests on a priori moral judgments or juridical reasoning without clear purchase on the daily realities of prosecution. This article plugs this knowledge gap by documenting and dissecting a single episode of felony bargaining over one case based on a three-year ethnography of the workaday world of prosecutors, public defenders and judges in two county courts of northern California. Far from being mechanical, the production of the guilty plea entails skilled and complex juridical work exploring myriad facets of the case, including facts, the criminal profile and social personality of the defendant, the past and probable future arc of his conduct and the many parameters of punishment. This coordinated effort to achieve a modicum of substantive justice challenges the conventional view of negotiated justice as a cruel and thoughtless “assembly line” trampling over the rights of the defendant. The metaphor of the “swirl”—a buzz of activity and a complex dance-like spiraling movement engulfing the defendant—is more apt to convey the mix of diplomacy and confrontation that produces guilty pleas. Capturing the ins-and-outs of prosecutorial labor as it happens in the county criminal court is indispensable to painting a realistic and conceptually articulated picture of the penal state.
Loïc Wacquant (Mon,) studied this question.