Optimists at an Uneven Lottery
KUH, RICHARD H.
Optimists at an Uneven Lottery Justice By Consent: Plea Bargains in the American Courthonse By Arthur Rosett and Donald R. Cressey J. B. Lippincott. 227 pp. $10.00. Reviewed by Richard H....
...The authors assume, for example, that bargaining about sentencing is routine...
...Unfortunately, despite lengthy notes packed with references to writings about other jurisdictions, in the process they appear to have lost sight of the fact that—as their title suggests—they were supposed to be telling us what is wrong with the practice throughout America...
...or the President's Commission on Law Enforcement and Administration, often called the National Crime Commission (Johnson...
...While the distinguished panel was appointed by the ex-President, the ad hominem labeling today reflects an intent to visit Nixon's infamy upon "his" commission...
...It is mentioned that pre-sentence reports compiled by probation officials are confidential in many states and may not be shown to anyone except the judge...
...Besides endangering their constitutional privileges against self-incrimination and to representation by counsel, such a program could breed chaos and further delay...
...Yet there are many judges —possibly the majority—who will not discuss in advance the sentence they might impose in a case...
...In fact, the book reads like an article for a Sunday newspaper supplement, put together by reporters who had taken a sociology course or two at the West Coast equivalent of New York's New School...
...For instance, giving the defendant an active role in his case, as suggested, would be largely a cosmetic and frequently disruptive...
...The writers are guilty of massive oversimplification when they suggest that "the bail bond system . . gives the arresting policeman effective power to impose a fine on the indigent persons he arrests" and persons "unable to pay for freedom" are sent to jail...
...They claim current laws permit unduly long prison terms and urge reducing them drastically, yet throughout the book they have acknowledged that these extreme sentences are rarely handed down...
...Reviewed by Richard H. Kuh Former New York County District Attorney We in the East have long heard —and many of us are prepared to believe—that California's criminal justice system is light years ahead of ours...
...The frequency of police and others talking, ex parte, to judges about pending cases is similarly cited without any adequate critique...
...One would never know that (putting aside the appellate level) ours is a system of men rather than of laws...
...Administered by unimaginative judges and prosecutors, who distort the concept in the face of their own pressures, it produces grossly unequal "justice," neither protecting the community nor rehabilitating the defendant...
...As a result, plea bargaining is often just that: plea bargaining, and not necessarily connected with sentence bargaining...
...In fact, legislation toward that end was vetoed and at the moment the law remains unaltered...
...At the same time, they make no proposal for dealing with the sadistic, amoral repeaters for whom crass violence is the only way of life—and of death...
...its custodial authorities have reportedly established several truly correctional institutions...
...its judges and prosecutors (except, apparently, in tinselled Los Angeles) are elected without political designation or support...
...There is no temperate reason for this...
...The professors are apparently incurable optimists...
...Analogous commissions have not been nicknamed for the Presidents who appointed them—e.g., the Wickersham Commission (Hoover...
...In addition to this shallowness, the scholarship is flawed and it indulges in inexcusable political name-calling at least once...
...They are not persuasive, and one has the impression that their presence is more a matter of structure than of genuine hope for reform...
...Rosett and Cressy also recommend more community involvement with plea bargaining, but do not make clear how the citizenry is to be dragged into the courthouse for this...
...But the big disappointment of Justice By Consent is that—omitting its copious notes and a number of textual references—it belies its distinguished authorship...
...And now, University of California professors Arthur Rosett (law) and Donald R. Cressey (sociology) explain how nicely plea bargaining works where they hang their sunshades...
...They present composite profiles meant to represent all judges, prosecutors, public defenders, and legal aids—with each drawn as a bright, dedicated, reasonable and reasoning person...
...As a book of this kind must, Justice By Consent proposes "solutions" in its last chapter...
...The authors argue that prosecutors and others who say plea bargaining is only necessitated by overburdened courts and weak cases, are consciously avoiding its real and rational reason for being: the need to do justice, to counterbalance overcharging, etc...
...Most criminal defendants—especially those involved with violence—are of limited intelligence and function far more persuasively through counsel (even poor counsel) than they would serving as their own advocates...
...The Golden State began hospitalizing some drug addicts well before New York recognized that in certain cases, at least, this was preferable to imprisonment...
...But having observed plea bargaining while serving as both prosecutor and defense attorney in New York City, I have long noted how badly it works...
...This is a sound basis for the practice, and in California it may be the principal one...
...Finally, they repeatedly downgrade a report of the National Advisory Commission on Criminal Justice Standards and Goals by calling it the product of the "Nixon Commission...
...Since this is not universal, the book might wisely have examined the pros and cons of the procedure and its impact upon sentencing process...
...that criminal justice in big-city America is an uneven lottery influenced by the idiosyncrasies, ambitions, politics, and levels of competence (or incompetence) of the individual handling a particular case...
...The authors suggest that New York's Draconian Rockefeller drug law was substantially modified...
...Though this is not a study of the bail system, it includes sizeable digressions on the subject and should offer readers a more serious analysis...
...Possibly because of this problem, former Watergate Special Prosecutor Henry S. Ruth Jr., heralded on the front cover for his Foreword, does not once mention the authors nor any contribution made by the chapters that follow...
Vol. 59 • May 1976 • No. 11
