THE BRITISH JOURNAL

OF

CRIMINOLOGY
Vol. 34 Autumn 1994 No. 4
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THE JUSTIFICATIONS OF 'JUSTICE'

Legal Practitioners' Accounts of Negotiated Case Settlements in Magistrates' Courts
AoGAN MULCAHY*

Plea negotiations are frequently criticized on the basis that they may arise from deception, coercion, and unethical practices. Nevertheless, they are highly valued by legal practitioners and widely used as a means of case disposition. While denying that negotiations are 'bargains' for defendants, and distancing themselves from any involvement in sentencing, legal practitioners justify their participation in this highly criticized activity in three major ways. First, they view negotiated settlements as more efficient and predictable than trials. Secondly, through the entry of 'appropriate' guilty pleas, negotiated settlements are thought to achieve substantive justice by linking the disposition with the facts' of a case. Finally, trials are viewed as unnecessary as defendants are largely perceived as morally culpable and substantively guilty. The paper considers the ideological nature of these justifications, as well as their implications for efforts to reform the criminal justice system.

Although few aspects of the criminal justice system have generated more controversy than plea negotiations,1 their prevalence in English courtrooms is undisputed (Baldwin 1985a, 1985*; Baldwin and McConville 1977; McConville et al. 1991). The recent recommendations of the Royal Commission on Criminal Justice (Sage 1993), as well as the proposals announced by Michael Howard, the Home Secretary (Travis and Dyer 1993), even suggest that a formal system of plea negotiations may soon be established. As most defendants eventually plead guilty, with a significant proportion doing so in
* School of Justice Studies, Arizona State University. I am grateful to the legal practitioners whose participation made this research possible. I also wish to acknowledge the kind and helpful advice of David Altheide, Peg Bortner, Ian Brownlee, Gray Cavender, Alice Feldman, Leo Flynn, John Hepburn, Nancy Jurik, Pat Lauderdale, Michael Musheno, Joanna Shapland, and two anonymous reviewers. ' Throughout this paper I use the term 'plea negotiations' to refer to the practice (and the discussions surrounding it) whereby a defendant pleads guilty to fewer or less serious charges in the expectation of receiving a reduced sentence. While the term 'bargain' is widely used, it is misleading because, as I later discuss, there are few 'bargains' to be had.

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controversial circumstances (Baldwin and McConville 1977; Blumberg 1967a; Dell 1971; McConville and Bridges 1993; McConville and Mirsky 1993, 1987), concern over plea negotiations is certainly appropriate. However, while analysis of the institutional processes which result in such consistent outcomes has generated an enormous body of research, the issue of how legal practitioners justify their participation in this heavily criticized activity has been overlooked. This omission is all the more significant as plea negotiations are a defining feature of courtroom practices, being highly valued by court professionals and widely used as a means of case disposition. In this paper I use Lyman and Scott's (1970) concept of'justifications' to examine how, in the face of widespread criticism of negotiated settlements, legal practitioners account for their participation in negotiations. On the basis of qualitative data gathered in two English magistrates' courts, I suggest that legal practitioners justify negotiated settlements in three distinct yet interrelated ways. First, and particularly so in the case of the defence, lawyers are acutely aware of the potential costs and disadvantages of trials and seek to avoid them where possible. In particular, negotiated settlements guarantee a certainty of outcome which is absent in cases which proceed to trial. Secondly, lawyers seek to achieve substantive justice by resolving cases through the entry of 'appropriate' pleas to 'appropriate' charges. The negotiation process facilitates the (re)alignment of the facts this involves. Finally, legal practitioners largely view defendants as both morally culpable and substantively guilty. Hence, trials are viewed as unnecessary, reflecting a failure rather than a success of the adjudicative process. The paper also discusses two important features of the criminal justice system which these justifications highlight. First, the model of justice which emerges from these justifications is one of 'crime control' (Packer 1968). Accordingly, die legal practitioners involved in these negotiations are more concerned with punishing the guilty than with safeguarding defendants' rights. Secondly, these justifications reflect common attitudes and a co-operative ethos among legal practitioners. Potential efforts to reform the criminal justice system must take this feature of court organization into consideration. The paper concludes with a brief look at recent developments which suggest that the introduction of formal negotiations into English courts may be imminent.

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Plea Negotiations in Criminal Courts

Most research on plea negotiations has focused on practices in the USA, where discussion of court communities in general has verged on the obsessive. British contributions to these debates, while significant, have been more modest in number. Citing the relative lack of British research on this issue, Baldwin observes that plea negotiations in British courts have proved 'curiously impenetrable to outside observers' (1985a: 1). This neglect may reflect such factors as the greater legal restrictions surrounding plea negotiations in Britain man in the USA (Curran 1991; McConville and Mirsky 1993). It probably also reflects the British political culture which has consistently avoided acknowledging the prevalence of plea negotiations. Thus, one early commentator could claim that 'there is no evidence of "bargains" being transacted in any quantifiable number in English courts' (Davis 1971: 228). The 412

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clearest and most controversial illustration of this 'denial' of plea negotiations was in the efforts of prominent legal and political figures to prevent the publication of Baldwin and McConville's (1977) groundbreaking research, claiming that the release of their findings would be 'directly contrary to the public interest' (1977: viii). The concern most often expressed about plea negotiations in England is that they place undue pressure on defendants to plead guilty.2 This was most forcefully expressed by Baldwin and McConville (1977), who argued that criminal defendants were frequendy pressured into pleading guilty even though they claimed they were innocent or the evidence against them was weak and may not have resulted in a conviction. The existence of a 'sentence discount' for guilty pleas is also held effectively to penalize those defendants who plead not guilty (Baldwin and McConville 1977, 1978; Robertshaw 1993; Robertshaw and Milne 1992). Zander's (1992) recent survey of Crown Court cases has brought to the fore once again the issue of whether negotiations result in innocent defendants pleading guilty. In the two-week period covered by the study, barristers of criminal defendants indicated in 53 separate cases (6 per cent of the research sample) that their clients pleaded guilty even though they may have been innocent (Zander 1992: 1733). This would yield an annual total of almost 1,400 defendants in the Crown Court alone pleading guilty while maintaining innocence. Zander sought to assuage concern over this by means no less subtle than describing the defendants in question as 'the "innocent"(?) who plead guilty', and by claiming that of these cases, 'few are likely to be thought to be a cause for concern' (Zander 1993: 85). McConville and Bridges (1993: 161), however, view the survey findings as clearly demonstrating that 'barristers accept guilty pleas even where defendants assert innocence and artificially amend their accounts to make the plea consistent with its "factual" basis'. They suggest that this 'should serve to overturn any remaining complacency in our existing system and stands as a stark warning against the importation of institutionalised plea bargaining' (McConville and Bridges 1993: 161). These criticisms of plea negotiations are especially relevant, because while several explanations for plea negotiations have been offered, these have generally assumed a state of equality among the various parties involved, and have failed to consider the defendant's marginal position within the court system in general and plea negotiations in specific. The first major explanation of plea negotiations is that they are a relatively recent phenomenon which have largely emerged as a means of coping with the increasing workloads which criminal courts face (Blumberg 1967A).3 Plea negotiations are held to emerge as the logical outcome of too few resources chasing too much work. Secondly, writers argue that plea negotiations are a form of 'individualized justice' (Newman 1966). This approach holds that legal practitioners use plea negotiations as a means to fit the 'facts' of individual cases to the abstract rules of the penal code (Rosett and Cressey 1976; Sudnow 1965). A third explanation of plea negotiations is that they are a
2 This is in contrast with the USA where criticisms of plea negotiations have tended to be articulated around the concern that they subvert the adversarial process and result in 'bargains' for defendants (Feeley 1983: 11455). This has led to the introduction of mandatory sentencing in some jurisdictions, and the banning of plea negotiations in others. 3 I will not go into the specific failings of each perspective here, but see Feeley (1979, 1983), Law and Society Rtvitw (1979), Maynard (1984), McConville and Mirsky (1987, 1990, 1993), and McConville et al. (1991), who, among others, offer a greater elaboration and critique of the 'heavy caseload' thesis and other traditional explanations of pica negotiations.

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form of exchange which provides concrete benefits to all the parties concerned (Feeley 1979). Thus, it is claimed that prompt settlements allow the defendant to return to a normal routine (or, at least, provide a sentence discount), provide the prosecution with the desired conviction, and allow the defence to claim success in the form of a sentence discount or other concession. In contrast to these essentially functionalist approaches is the perspective advanced by McConville and Mirsky (1987, 1988, 1990, 1993), which holds that plea negotiations, at least in the cases of indigent defendants, largely arise from structural constraints which limit the ability (and/or willingness) of defence lawyers to provide their clients with an aggressive defence. These constraints include a dearth of material resources with which to conduct such defences, and an occupational culture which promotes the needs of the court community over those of indigent defendants. McConville and Mirsky's analysis of legal services for the poor in New York City leads them to argue that the indigent defence system was designed 'to institutionalize costeffective lawyering arrangements that depend on routinized case processing and discourage individual lawyers assigned to the poor from providing them with adversarial advocacy' (1990: 235). Other writers have also noted how the court system, in Packer's (1968) terms, functions more according to the principles of 'Crime Control' than those of 'Due Process'. Carlen (1976) argued that the informal rules which underlie court activities render the criminal process largely inaccessible to defendants (for a related view on witnesses, see Rock 1991). McBarnett (1981) demonstrated that the legal procedures which guide the criminal process are essentially structured to produce convictions. Indeed, most elements of the criminal justice system (including court professionals) function on the basis that the vast majority of (if not all) defendants are guilty (McConville el al. 1991). Consistent with this assumption of guilt, defendants suffer the stigma of criminality in relation to employment opportunities and other realms of their lives (Schwartz and Skolnick 1964). They occupy a marginal position, one from which their voices are often silenced (Casper 1972; Christie 1977; Dell 1971). This feature of the court process was also noted by Baldwin and McConville (1977: 83), who found that the legally represented defendants in their study displayed a 'profound sense of non-involvement in, if not complete alienation from, the legal process in which they had been involved'. Thus, while controversies over the precise origins, nature, and impact of plea negotiations continue, one of their defining characteristics is that defendants' interests, to a greater or lesser extent, are subordinated to organizational needs and ideological imperatives (McConville and Mirsky 1987, 1993). However, in spite of these criticisms of plea negotiations, legal practitioners view them favourably. Moreover, this positive attitude towards negotiations is undoubtedly linked to their prevalence. I argue that until we can understand how legal practitioners come to hold these views, articulate them, and justify them, defendants will be condemned to remain outsiders to the negotiations which are at the core of much of the criminal process, and which for them are so consequential. This paper seeks to contribute to these debates over the court process by identifying the justifications legal practitioners use to account for their participation in plea negotiations. Through a critical examination of the accounts these individuals offer, we may be able to reach a better understanding of the processes by which controversial activities can be presented as legitimate, even necessary. Before I
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proceed to a discussion of the data, I describe the methodology and setting of the research.
Methodology and Setting

This study examines the 'accounts' which legal practitioners use to justify plea negotiations. According to Lyman and Scott (1970: 112), an account is 'a linguistic device employed whenever an action is subjected to valuative inquiry'. They distinguish between two types of accounts: 'excuses' and 'justifications'. Excuses are used in an effort to mitigate or relieve 'responsibility when conduct is questioned' (p. 114). Justifications, on the other hand, 'are accounts in which one accepts responsibility for the action in question, but denies the pejorative quality associated with it' (ibid.). My concern here is with justifications rather than excuses because: first, participants in this study openly admitted their involvement in plea negotiations, accepting full responsibility for engaging in this behaviour; and secondly, one of the major rationales offered for this involvement was that it was considered to realize substantive justice (several interviewees referred to the practice of 'doing justice')thus, their accounts emphasized that the practice lacked a pejorative dimension, indeed, that it was appropriate and called for. In these ways, their accounts contained both constitutive elements of justifications. The data were gathered during a research period of approximately six months in two urban magistrates' courts in the north of England, joindy serving a population of over one million inhabitants. Court administrators allowed me to observe pre-trial reviews (PTRs) in each court in an effort to gain insight into various aspects of court organization. Although the nature and form of PTRs differ across courts, they are typically informal meetings between defence and prosecution solicitors and presided over by a court clerk, at which a discussion of the case takes place. In addition to streamlining cases (e.g., by dispensing with unnecessary witnesses) and providing the court administration with up-to-date listing information, PTRs are an important forum for case settlement (Baldwin 1985a, 1985A). Initial observations of these procedures as well as discussions with legal practitioners quickly revealed the centrality of plea negotiations to the general operation of magistrates' courts. In the tradition of 'grounded theory' (Glaser and Strauss 1967), these initial empirical observations revealed emergent themes and suggested promising lines of inquiry. Accordingly, the attitudes of legal practitioners towards plea negotiations became a focal point of the research. The main source of data was in-depth, semi-structured interviews conducted with 26 legal practitioners. Individuals who were frequently involved in processing criminal cases and were regular figures in these courts were approached and asked if they would consent to be interviewed. Every individual I approached agreed to this. This sample covered a broad range of legal practitioners and included seven defence solicitors, seven crown prosecutors, ten court clerks,4 and two magistrates. The interviews were between
4 The views of clerks were sought because during pre-trial reviews they frequently played an active role in directing discussions and promoting settlements. Furthermore, after gaining some experience working in courts, many clerks proceed to become solicitors; it seems likely that they take the views they hold of negotiations while clerks with them. Finally, research suggests that the clerk's role in magistrates' courts is underestimated (Darbyshire 1985; McLaughlin 1990).

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20 minutes and two hours in length, and most lasted over an hour. With the interviewees' consent and a guarantee of confidentiality, all interviews were taperecorded and subsequently transcribed verbatim for coding and analysis. Other data were gathered through observations of PTRs. In one court, PTRs were listed individually in the general court lists and took place in open court. The defendant was usually present for these hearings, but typically played a minor role in case discussions. Magistrates were also present, and although they occasionally made suggestions concerning general court listing issues (such as whether trial dates should be set with incomplete witness availability information), they usually refrained from participating in the discussions and sometimes even left the courtroom for the duration of the PTR. The fact that PTRs were listed singly made observing large numbers of them difficult, and while negotiations were observed to occur there, the open nature of the setting was an inhibiting factor5 for the legal practitioners involved. Accordingly, most observations of PTRs were conducted in the second court used in this study. In that court, PTRs were listed in groups of ten or more, and they took place (in the absence of magistrates and a public audience) in an interview room on two afternoons of each week. Defendants typically were in the court building, but did not attend the PTRs. Following the completion of several PTRs the participants moved to an adjacent courtroom where proceedings could be interrupted to allow the decisions made at each PTR to be ratified by magistrates. Over the research period, approximately 90 PTRs were observed in all, and these shed important light on the dynamics of negotiations. Finally, data were collected through general observations of the spectrum of court procedures, and informal interviews and conversations with a variety of court users. These provided an opportunity to clarify some issues, and to supplement the more detailed information gathered by other means. Before presenting the data, however, a discussion of the limitations of the methodology used in this study is warranted. It may be helpful to further clarify the use of the concept of 'account'. Accounts are essentially narratives which people relate about features of their world when those features are subjected to evaluation and/or critique. Justifications, the form of accounts discussed here, are a rhetorical device by which challenges to particular actions (in this context, plea negotiations) are refuted, and in which the moral worth of those actions is re-established. As they promote a particular world-view, such as to cast in a favourable light ethically tenuous aspects of legal practitioners' work, they have a clear ideological component. But it is also important to stress that my goal here is not to assess the validity of these accounts. First, because they represent not what people do, but what they say they do, these accounts have their own legitimacy as part of the world-view of the individuals involved. Equally importantly, however, I do not have sufficient data with which to evaluate these claims. As this study is primarily based on interview data, the discussion here must largely remain limited to what legal practitioners said rather than what they did. The observations of PTRs and other court procedures which informed the research did provide some insight into how negotiations occur, but this excluded background information (such as the amount of work solicitors had put into these cases, the nature and strength of the evidence
For example, the negotiations which were observed in this court were conducted in whispers. In the second court, negotiations were conducted in normal (or louder) tones of voice, and included swearing and animated gestures.
3

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involved, and the likely outcome had the case proceeded to trial) which could have a vital impact on how particular cases are processed. These limitations render an empirical evaluation of these justifications impossible, and so the claims presented here must remain, at the end of the day, no more than claims.
The Context of Plea Negotiations

Serious concerns have been expressed over the extent to which negotiated pleas arise through coercion, deception (Baldwin and McConville 1977; Dell 1971; McConville et al. 1991), or the absence of an adversarial culture (Blumberg 1967a; McConville and Mirsky 1987, 1988, 1990). These concerns, however, are not shared by legal practitioners. Displaying considerable divergence from the public's negative attitude towards negotiations, the legal practitioners in this study view the practice in a very positive light. Put simply, the problem for them is that courts place too little emphasis on negotiations rather than too much. One defence solicitor bluntly told me that he would negotiate settlements to all of his cases if he could, while other solicitors (both prosecution and defence) complained about the lack of an official forum for negotiations in magistrates' courts. When asked whether negotiations occurred regularly, for example, one defence solicitor replied: Yeah, oh yeah, 'two or three-charges, what will you take?' Of course plea bargainingcall it what you likewent on . . . Still goes on now in correspondence, or in telephone calls, or in the door-of-the-court chats. Always has, and I suspect always will. Prosecutors also noted the widespread practice of negotiating pleas. As one related: 'Well, it goes on, and there's quite a lot of it.' Another interviewee observed that negotiations are generally considered a legitimate activity in the Crown Court and openly practised there. Negotiations, he said, are 'what it's all about, that's what goes on . . . That's what goes on in the Crown Court all the time'. In short, the negotiated settlement of criminal cases is commonplace throughout magistrates' courts and is an important feature of lawyers' daily work there. In both courts used in this study, approximately 20 per cent of the cases in which a PTR was held during the research period were settled there, either through the prosecution withdrawing the charges, or the defendant pleading guilty to all or some of them.6 However, while negotiations are a fact of life for legal practitioners, several factors have a bearing on the willingness of the various parties involved to negotiate in a given circumstance. Important considerations for the participants in this study included, but were not limited to, evidentiary concerns (particularly the strength of the prosecution's case), the nature of the offence, the victim's attitude, and the defendant's commitment to a not guilty plea. In the following example taken from a PTR I observed, the strength of the prosecution's evidence had a decisive impact on the nature of the outcome. The case involved one charge of shoplifting and two charges of assault (one against a store detective and the other against a police officer). Following a brief discussion of the case details, the defence solicitor proposed a settlement.
6 Certain formulaic charge reductions are common. Standard ones include reducing a charge of an s. 3 public order offence to an s. 4 for an s. 4 to an s. 5), a charge of theft to that of receiving stolen goods, and an s. 18 wounding to an s. 20 assault.

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Def: How about taking a plea to one of the section 47s [assault charges] and dropping the other? Pros: No, but I'll tell you what I'll do. I'll accept a plea on the . . . [store detective assault charge] and on the . . . [police officer assault charge] and drop the charge of theft. Def: I'll take instructions. [Leaves, then returns several minutes later] Are you sure about the section 47s 'cos he said he hit one but not the other? Pros: [Looking through thefile]No, the witness is quite clear that he hit both of them. Def: I'll talk to my client about a plea. [Leaves] The defendant duly pleaded guilty to both assault charges and the theft charge was dropped. The significance of the nature of the allegations involved was evident in another case. In this instance the defendant was charged with a public order offence but alleged in turn that he had been assaulted by the police. The court clerk asked if a bind over had been considered. The prosecutor replied: 'Bind over? No, complaints have been made against the police, so they feel that a bind over isn't appropriate in the circumstances.' Although the defence is less likely than the prosecution to be in a position of evidentiary strength, occasionally this does occur. For example, during one PTR, the defence solicitor showed the prosecutor photographs taken of the defendant following his release from police custody. Def: Now these are injuries! Pros: How is this supposed to have happened? Def: The police kicked the hell out of him! Pros: [Defensively] I've said if I review it [the case] it will probably change substantially. Def: I look forward to it. Therefore, although features of an individual case may make it more or less suitable for a negotiated settlement, defence solicitors, crown prosecutors, and court clerks alike share positive views of negotiated settlements, and, where circumstances allow, favour this means of case disposition above all others. However, an important qualification to the enthusiasm expressed by the interviewees for negotiations was the claim that these negotiations in no way compromised the quality of justice dispensed. The unanimous view was that negotiations are not 'bargains'; in other words, that negotiations do not result in the defendant receiving a 'bargain sentence'. Legal practitioners, it appears, are highly concerned at the public's perception that defendants are escaping the punishments they 'deserve'. One court clerk sought to alleviate this concern in strong and simple terms: There are no bargains. Plea bargaining's an American expression. I disagree with it in principleI think most people dobecause the connotation is that the defendant's getting a good deal, whereas in this country there is no such thing. In at least one important sense, this clerk was right. The term 'bargain' implies that the defendant received a discount or concession in the form of a less severe punishment than was deserved or that would have been received in the event of a conviction following trial. However, as regards the existence of'bargains', magistrates' courts have 418

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few on offer.7 The sentencing powers of magistrates are severely circumscribed, the heaviest custodial sentence they can impose being two consecutive sentences of six months' imprisonment. With little room for 'bargaining' over a reduction in a custodial sentence, the scope for negotiations is largely limited to 'charge bargaining'dropping one or more charges or reducing their seriousness.8 Indeed, the dearth of evidence of 'bargains' is a point which is not lost on lawyers. According to one defence solicitor: I've got to say when there has been an arrangement, an agreementplea bargainingI always tend to find that the sentence fits both the new set of circumstances and the old. In other words it's very unusual that there's a plea bargain and you get an outrageously low sentence . . . [and] that you find at the end of the day the prosecutor leaping up and down and [saying] 'that is such an outrageous sentence, I wish I hadn't [agreed to the plea bargain]'. Thus, while lawyers praised the benefits of negotiated settlements, they continually sought to distinguish between the negotiations they customarily engaged in and any system of'sentence bargaining' such as that which they generally perceived to operate in the USA. The major objection which was voiced against any such involvement in the sentencing process was that it dilutes magistrates' legitimate control over this matter. According to one solicitor: Obviously when you're saying plea bargaining the sentencing side of it can't be involved in any way. It's not like the American system where . . . [defendants] know what's likely to happen, so if they're prepared to 'cop a plea' to a common assault [charge] there they know what the prescribed sentence is going to be . . . None of that takes place over here. The defendants to some extent are still having to throw themselves on the mercy of the court. They have no idea what the sentence is going to be, so it's not true plea bargaining American-style. I suppose it's negotiating on pleas to cases, that's all, pleas to charges. This unwillingness by lawyers to contemplate involvement in the sentencing process highlights a distinction between two forms of negotiations: one that involves sentencing considerations; and another that is more pragmatic and expedient in orientation, where those involved are concerned with taking 'a general view' of the case, discussing whether there really is a need to hold a trial, and whether the 'facts' of the case can be realigned with alternative, more 'appropriate' charges. A defence lawyer articulated this distinction: There's two [forms of bargaining]. The classic in the Crown Court is a fellow whose case is listed for trial; the judge sends a message through: if he pleads guilty he'll get a suspended sentence, if he's found guilty he's going to prison. Of course the bloke pleads guilty. But the aspect of plea bargaining which I think is useful is to just look at what the bloke is charged with, to take a general view, and then say 'Well, is it necessary to have a trial?' I think we frown upon it here because it smacks of 'double dealing'. The magistrates don't like it because they think we're working behind their backs. But I've always been of the opinion that it's always worth talking, so that if it's possible to sort it outand if the chap's only going to getfinedanywayI can't see
7 As there is Hide about sentencing in magistrates' courts over which to bargain in any event, distinguishing between US and English practices may simply be an effort to deflect the criticism which has characterized plea negotiations in the USA (see Law and Society Review 1979). 8 A significant benefit to defendants from prompt negotiated settlements is not having heavy costs awarded against them (Baldwin 1985a: 76).

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anything to be gained by costing the state a couple of thousand pounds just purely and simply to prove a point. It is against the backdrop of these qualificationsthat negotiations do not result in 'bargains' for defendants, and that advocates should not participate in the sentencing processthat legal practitioners articulate the following justifications of plea negotiations.
Justifications of Plea Negotiations The disadvantages of trials

A major justification offered by legal practitioners for engaging in plea negotiations is the perceived disadvantages of trials. For most lawyers working in magistrates' courts, trials are undesirable, absorbing the scarce resources of all of the parties involved. It is for defence lawyers, however, that they pose the greatest difficulties. For them, there is the constant worry that their clients will, without advance warning, plead guilty immediately prior to the trial, thereby embarrassing the solicitor, antagonizing the bench, and losing any sentence concession which an earlier plea might have secured. Nevertheless, negotiated settlements are favoured by the defence for reasons other than a lawyer's desire to avoid the indignity of informing an antagonistic bench that the scheduled trial is no longer to proceed. The interviewees offered three major arguments in leading them to favour negotiated settlements over trials. First, negotiated setdements allow the defence lawyer greater scope for mitigation on the defendant's behalf following the entry of a guilty plea. An early plea of guilty can be used to indicate repentance, and to acquire for the defendant any sentencing discount which the court offers (Baldwin and McConville 1978). Additionally, negotiated settlements often lead to some charges against the defendant being dropped, which again can facilitate mitigation. A defence solicitor cited an example where the prosecutor 'was in some difficulty' with the evidence concerning 18 charges of theft, and suggested a compromise instead. The solicitor discussed this with his client who pleaded guilty to two charges while the other 16 were dropped. According to the solicitor, it was 'far easier to mitigate on two than 18'. Secondly, there is the element of certainty. Lawyers appreciate that trials are unpredictable events: witnesses and defendants may fail to appear, or to convince the bench of the truth of their account of events (Rock 1991). Negotiated settlements also restrict the nature of the information which can be presented in court, preventing incriminating evidence emerging during trial. One defence advocate observed that at the sentencing hearing following a negotiated settlement: What's going to be said is what is on the advance disclosure, perhaps with a bit of embellishment. Whereas it's not entirely unknown for something to go horribly wrong [at trial]. You know, a witness lets something slip which nobody knew about and suddenly the case changes its complexion. For example: 'Why didn't you say this at the time?' 'Because he threatened he would kill me if I went to the police.1 And suddenly you're in a different ball game. Now, [by pleading guilty] you can avoid unexpected additions like that. A third factor solicitors cited against trials was that they viewed magistrates in general as prosecution-minded. This perception is supported by the substantially
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higher trial conviction rates in the magistrates' courts than in the Crown Court. As a result, some solicitors view trials in the magistrates' court as little more than a prelude to conviction: I do very few trials, frankly, because I don't have a very high view of magistrates' ability to acquit . . . I think they find it difficult to find sufficient doubt to acquit . . . Well, I suppose it's got to be the old after-dinner joke: 'If they didn't think they were guilty they wouldn't be there,' or 'If the police think they're guilty they must be.' It's got to be that, got to be . . . A consequence of this perception that Crown Court judges are more sceptical than magistrates of the prosecution's case, coupled with the greater willingness of parties in the Crown Court to negotiate in light of the correspondingly higher costs of trials there, may result in a 'tactical' not guilty pFea being entered in the magistrates' courts. The expectation is that once the 'negotiation friendly' environment of the Crown Court is reached, the defendant will plead guilty there to relatively favourable terms.
Doing 'justice' through 'appropriate' pleas

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The professional ethics of defence advocates require that they defend their clients to the best of their abilities. In addition to the assumptions this makes about the adversarial nature of the courts (see McConville and Mirsky 1987, 1990), it also suggests that defence solicitors are able to distance themselves sufficiently from their roles as citizens and members of the court community competently to perform this task. Defence solicitors, however, share many of the public's anxieties about inefficiency in and lack of funding for the criminal justice system. This suggests that a professional ethos of distancing and objectivity may amount to little more than a rhetorical device. As one worried lawyer said: People are being bailed every day at the expiration of custody time limits, serious offenders who are being bailed purely and simply because the [Crown Prosecution Service] haven't got the resources. And sooner or later something's going to happen there, and it's going to hit the fan, and somebody somewhere is going to say: 'Well, why was this rapist let out when a High Court judge, a Crown Court judge and magistrates had said that he shouldn't be?' But he was let out because the police didn't submit the file in time. I mean that's another aspect of it, but it's all part and parcel of the general lack of funding. This evident concern about matters of crime and justice is echoed in other lawyers' comments about their professional duties. Not only do they seek adequately to represent their defendant, but they are also concerned in reaching 'just' outcomes to the difficult issues raised in criminal cases. The resolution to this dilemma of conflicting imperatives often involves a mixture of pragmatism and compromise. The function of lawyers during negotiations, one advocate said, is: to do what is sensible and to do what is, you know, so that at the end of the day, everybody's interests are served, from the defendant to the members of the public . . . But I don't think that stops us actually saying to a court: 'Look, we've discussed this case and we feel that these pleas properly reflect the case.' I mean they do it every day in the Crown Court, and it works very successfully . . . The pursuit of this nebulous notion of 'everybody's interests' was usually mingled
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with a concern that defendants be held accountable for offences they were believed to have committed. Such is the presumption of the defendant's culpability that, for lawyers, the object of negotiations appears to be the determination not of guilt or innocence, but of the 'appropriate' level of guilt (McConville el al. 1991; Rosett and Cressey 1976; Utz 1978).9 One prosecutor discussed how meetings between prosecutors and defence solicitors frequently bring to light important information. Although such encounters often lead to a reduction in the seriousness of the charges laid against the defendant, this prosecutor emphasized that this did not constitute bargaining. 'I'm not talking about plea bargaining,' he said, 'I'm talking about what is the appropriate level of charge on the new information which might have been given.' This view that plea negotiations did not result in discounts but in the defendant pleading guilty to the correct or 'appropriate' offence was shared by others. For example, one court clerk sought to dispel any notion that pleas to 'appropriate' charges constituted a 'bargain' for the defendant:
Clerk: If there is discussion about the plea or an alternative charge it could be to a different charge that carries the same penalty. But it's the right offence. A.M.: So it's a more appropriate offence? Clerk: [It's a] more appropriate offence, rather than a bargain [or] getting a reduced charge, which is what it means in America. A.M.: Do you think at the end of the day that the practices [in Britain] and in America are that different? Clerk: In that respect, yes, I think they are. [Getting a bargain] doesn't happen [here]. A judge may say: 'Well, if he pleads guilty to that he'll get such and such if he indicates that and changes [pleas].' That's all well and good. That still is not plea bargaining. It's pointing out what is the right offence to plead to for the defence. And they don't get a bargain, they get the plea to the right offence, and that way saves a lot of court time . . . I say that negotiations are about the right plea to the right charge, it's not a bargain. It's saving court time, not wasting court time.

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Thus, legal practitioners use the claims of pragmatism, expediency, and fairness to defend themselves against the criticism that plea negotiations interfere with the pursuit ofjustice. Indeed, one lawyer favoured negotiations to such an extent that he sought to remove any formal obstacles to them. In this way, he suggested, unnecessary trials would be avoided and justice would be done:
Def: I personally would give them [the prosecution] effectively an open hand [to engage in plea negotiations], because I think, you know, we are all trying to do justice at the end of the day to everybody. You know, we are all members of the public as well as defendants and lawyers and policemen or whatever, so you have to recognize that, but I think by the same token you also recognize that you've gotta look at the whole of the jigsaw really. A.M.: You don't think that the interests of justice are in any way not served? Def: No, I think the interests of justice are served, I really do. I mean I don't think there is anything to be gained by running a trial where it's not going to affect the final outcome . . . You know, what's served by that? I thinkmuch as we would like to live, I think, in the ideal
9

This point ij elaborated on in the following section of the paper, 'Social constructions of criminal defendants'.

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worldI think you've got to say: 'Well, no, you know, we've got to make the system work, and we've got to try and do justice,' and I think that [plea negotiations] does really. As in most of the other interviews, the claim here that negotiations realize 'just' dispositions is based on the view that defendants are factually guilty, and will be found so at trial. Accordingly, justice becomes something to be done to defendants. I now turn to a discussion of the social constructions of criminal defendants which underlie these claims.
Social constructions of criminal defendants

It would be impossible for criminal justice officials to negotiate settlements which they view as acceptable, appropriate, and just outcomes without first constructing images of defendants (Maynard 1984; Rosett and Cressey 1976; Sudnow 1965). The two dominant conceptions of defendants are that they are morally culpable and substantively guilty. The moral character of criminal defendants is a prominent feature of the ways that legal practitioners speak of them. Defendants are consistently described as being irresponsible and undependable. In this regard, one defence solicitor offered a relatively sympathetic account of defendants: 'I think the difficulty the defence has by virtue of the job we do [is that] we have rather unreliable clients.' A magistrate echoed this perception. He vehemently defended defence solicitors against the common allegations that they abuse the system, countering that any difficulties which arose were largely the fault of defendants. His support for defence solicitors arose largely from his belief that 'by and large, they're dealing with people who are totally unreliable and feckless'. Much to the annoyance of legal practitioners, defendants were clearly thought to lack a commitment to any form of a 'Protestant work ethic'. Defendants, one lawyer related, 'in contrast to you or me, lack any sense of purpose or urgency'. Legal practitioners voiced a deep resentment at the general failure of defendants to adhere to professional practices of keeping appointments. This was a bitter, if resigned, complaint against defendants, as well as a powerful means of conceptualizing them. According to one court clerk: I mean you're dealing with people who don't fill in forms, who don't turn up for appointments . . . And if you're dealing with the run-of-the-mill defendant who's unemployed and lives on [a slum estate], [he's] never kept an appointment in his life, they just don't do it, they just don't go in [to see their solicitor]. A solicitor who complained about the high percentage of appointments for which defendants failed to attend observed that because defendants are unwilling participants in the court process, their commitment to its satisfactory and efficient operation is negligible. 'The majority of our clients,' he said, 'are not going to co-operate with their solicitors, they're not going to co-operate with anybody . . . even to the extent of turning up [for court hearings].' A similar scepticism was evident in another lawyer's observations: For the system to work satisfactorily it presupposes that the client takes an interest in his case. Now that's a fairly fundamental misconception. They couldn't give a toss mostly, couldn't care
423

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less until the day of the race. So it's very hard for me if I've gotfivewitnesses' [statements] which have been served . . . [and] I write to my client [saying]: 'We've had the statements from the prosecution. Would you please make an appointment to see me. It is important in the preparation of your case.' Nothing! If you're lucky they make an appointment and don't keep it! . . . I mean I've got clients whose cases can go right through the magistrates' court, be committed to the Crown Court, can be listed for trial in the Crown Court following plea, and they've never been near [my office]. I've got clients who are in trouble regularly, and there's one particular client, I bet he's never been to this office since I've been here, which is four years. Because, you know, they [think]: 'Ah, it'll be all right, . . . [my solicitor] will sort it out.' Now you tell me how you can make a system work [on that basis]. This perceived failure to keep appointments with lawyers or to attend court hearings was linked by some interviewees to the second widely held characterization of criminal defendants; namely, that they are substantively guilty. A lawyer suggested that as defendants were probably going to be convicted in any case, their failure to attend court hearings reflected an understandable desire to put off a very painful moment of 'truth': By the very nature of who they are, defendants are unable to, as a generality, make and keep appointments . . . It's not in their interests. A lot of them know the system. No defendant, very rarely a defendant, wants his case to be heard today if it can be put off until tomorrow. It's the evil day, you never face it unless you really have no choice. Observations of PTRs corroborated that many defence solicitors view with scepticism their clients' claims of innocence. During one PTR, the defence solicitor mimicked his client's statement of innocence: 'I didn't do it; I didn't fucking do it.' The defence solicitor seemed certain that his client was guilty and requested that the prosecutor disclose some of the prosecution's evidence as this would assist him in persuading the defendant to enter a guilty plea. According to the defence solicitor: 'I can put them under his nose and say "Come on, be sensible".' On another occasion, a defence solicitor requested that an identity parade be held in the case of his client. Although the defendant insisted that he was elsewhere at the time the offence was committed, the defence solicitor was confident that the defendant would be identified during the parade and would plead guilty as a result. The solicitor wearily proclaimed that: 'If he's picked out by everybody, he might put his hands up [i.e., surrender by pleading guilty].' This presumption of defendants' guilt is largely shared by court clerks, whose duties include advising magistrates on points of law and safeguarding the rights of unrepresented defendants (see, generally, Darbyshire 1985). When asked how he discharged his duties towards defendants, one clerk revealed how he too adhered to this presumption of the defendant's guilt: I tend to take a very 'Noddy' [basic] approach [to defendants] always. I say: 'This is the prosecutor, he's going to say what you've done. After he's said that, you'll have a chance to lie about what you've done, to lie about your income.'10 [Clerk laughs] A prosecutor sketched criminal defendants in similar terms:
10

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A defendant's income is used 10 help calculate her/his ability to pay fines and make restitution.

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I mean, the majoritylet's face itof those people who appear before the court aren't the sort of people that you'd want to associate with, and aren't the sort of people that you'd have any sort of respect for, because they're liars, thieves, thugs.

These shared perceptions of the defendant's moral culpability and substantive guilt have implications for the manner in which negotiations take place. Observations of PTRs and other settings revealed that both defence and prosecution solicitors, almost as a matter of course, referred to defendants disparagingly. The absence of the defendant from the PTRs" facilitates this practice. According to one prosecutor:
Pros: I must admit I find it easier to discuss cases with the defendant's advocate in the absence of the defendant because . . . you can make quite disparaging remarks if you think somebody's lying, and so on . . . and I think I'd be uncomfortable about doing that in the presence of the defendant . . . A.M.: Do you think the defence solicitor would behave differently [if the defendant were present]? Pros: Yes, he might very well be more guarded about what he said. A.M.: Presumably he wouldn't call the defendant a liar? Pros: Well, in theory he shouldn't do that anyway. But an awful lot of remarks are made at PTRs that are not to be repeated elsewhere.

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Another prosecutor also felt that the defendant's absence allowed the solicitors on both sides to speak freely not only about the quality of the evidence, but also about the defendant's moral character. He related how the prosecution and defence frequently reached similar evidentiary and characterological assessments:
I would be less forthright in the opinions that I expressed [during negotiations] if the defendant were there. I think if he isn't there then there can be more plain talking . . . I might say to a defence solicitor, well, you know: 'Your chap is telling a load of lies, he's made this cock-andbull story up, and you know it, because look at the inconsistencies, look at the lies he's told the police . . .' You can't do that, you can't say to the defence solicitor whilst his client is there: 'Well, I don't believe what your client has said is the truth,' because you're likely to get punched . . . [Additionally,] the defence will often say to you: 'Oh*, he's an absolute pillock, this client of mine. I don't know why he's pleading not guilty.' We're not then constantly worrying about some legal argument that might arise because we know that the defendant, through his own stubbornness as it were, is denying the offence. And so, yes, that would go out the window if the defendant were there.

Although prosecutors claimed that they typically learned little from defence disclosure as most defence strategies were self-evident, the sharing of information remains an important aspect of PTRs. Moreover, the above quote also reveals that the cooperative ethos operating among court professionals is established in part on the exclusion of defendants, to the extent that defendants may be discredited and/or ridiculed by their own solicitor.
" The reader is reminded that ihe defendant was excluded from pre-lrial reviews in only one of the two research courts. In the other, the hearing took place in open court fand in the defendant's presence), although in a relaxed and informal manner. However, the defendant's presence on these occasions is no guarantee of adherence to procedural safeguards, as additional informal negotiations will almost certainly occur in the defendant's absence when familiar patterns of interaction among lawyers will likely appear once again.

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Despite these acknowledged practices where the defence advocate seems to be more closely allied with the prosecutor than with the defendant, there appeared to be little concern that the rights of defendants were in any way being infringed. One defence solicitor, though, did suggest that there may be some basis to this concern. While prosecutors and clerks often hinted that defence solicitors frequently draw out cases to increase their fee, this lawyer suggested that the opposite was the case. In his view: 'I think it's to the extent to which we dissuade . . . [defendants] from going ahead on a not guilty plea that we're subject to some suspicion.' Such mild expressions of remorse, however, proved to be the minority view. A court clerk provided a more typical example of responses to queries concerning infringements of the defendants' rights. When asked whether he could recall an instance in which the defence solicitor had not protected his/her client's rights, he replied: 'Yes, when they're letting them plead not guilty when they should be pleading guilty.'
Discussion

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This paper has examined the ways in which legal practitioners justify their participation in plea negotiations. In spite of the criticisms levelled against it, the negotiated settlement of criminal cases is an activity in which legal practitioners enthusiastically participate; it is an accepted means of case disposition, highly valued by court professionals and used accordingly. Legal practitioners justify their involvement in negotiations by claiming: (1) that negotiated settlements avoid the disadvantages of trials, and therefore are a preferable means of case disposition; (2) that negotiated settlements realize substantive justice through the entry of 'appropriate' pleas to 'appropriate' charges; and (3) that trials are unnecessary as defendants are viewed as morally culpable and substantively guilty. Through these justifications legal practitioners can present plea negotiations as valuable and necessary features of court activity; and their continued participation in negotiations must be understood in this light. Two features of these accounts warrant further discussion: their ideological character, and the implications which they pose for reform efforts.
Accounts as ideology

While justifications are presented by those who hold them as self-evident truths, it is important to stress their ideological character. According to Thomas, ideologies function to justify 'what is' (1993: 8). Legal practitioners' justifications of plea negotiations arise in a context in which these negotiations are heavily criticized for the threat they pose to defendants' rights (Baldwin and McConville 1977; McConville etal. 1991). Justifications are the means by which legal practitioners undermine these criticisms, portraying negotiations instead as a valuable component in the project of 'doing justice'. The social significance of accounts is most evident when actions are subjected to critical scrutiny. In such instances, accounts are offered in an effort to sustain the legitimacy and acceptability of the actions in question, and of the ideologies underlying them; they are a strategic means by which particular ideologies can be defended in the face of criticism. Thus, in their accounts, legal practitioners not only state their attitudes towards negotiations; they also express their support for a model of the criminal justice system which functions through co-operative rather than adversar426

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ial means, is based on assumptions of defendants' guilt rather than innocence, and from which defendants are largely excluded. In short, the justifications legal practitioners offer for their participation in negotiations adheres to a model of the criminal justice system which favours 'crime control' over 'due process' (Packer 1968). In this sense, the justifications legal practitioners offer for their participation in plea negotiations highlight the ideological character of accounts.
Implications for reform efforts

While official rhetoric characterizes the criminal justice system as adversarial, this paper demonstrates that court activity reflects an essentially co-operative ethos. Court clerks, prosecutors, and defence solicitors alike hold common views on such issues as the 'nature' of defendants and the ability of negotiated settlements to realize substantive justice. Courts, therefore, are better described as 'communities' (Eisenstein el al. 1988), although ones from which defendants are customarily excluded (Baldwin and McConville 1977; Blumberg 1967a; McConville and Mirsky 1987). This underlying cooperative ethos has strong implications for potential reform efforts (Feeley 1983), particularly those which seek to safeguard defendants' rights. Pre-trial reviews, for instance, are increasingly used as an informal forum for case settlement, resulting in considerable controversy over whether they erode defendants' rights (Baldwin 1985a, 19856; McConville and Mirsky 1993; McConville el al. 1991). Baldwin, for instance, argues that PTRs do not represent a threat to the defendants' interests as during his research he 'did not observe a single case in which a bargain could fairly be described as improper' (1985a: 97). McConville el al. (1991), however, argue that PTRs operate to the detriment of defendants' interests, by encouraging the defence to share information in the absence of any legal obligation to do so, and facilitating plea negotiations which often demonstrate little regard for defendants' rights.12 The findings presented here support McConville el a/.'s (1991) position: PTRs encourage defence solicitors to share information although there is no legal requirement to do so, and they facilitate negotiations which often involve moral denunciations of defendants and allusions to defendants' assumed guilt. While this is a disturbing, if not entirely unexpected, finding, v/e must consider how altering the structure of PTRs would address broader concerns expressed over the criminal justice system, specifically the need for better protection of defendants' rights. In many, if not most, of the cases where negotiations occur at PTR, they would probably occur regardless of whether or not a PTR was held. Certainly, the participants in this study engaged in widespread negotiations prior to the introduction of PTRs, and they still engage in negotiations in contexts other than at PTRs. Nevertheless, McConville and Bridges (1993: 161), argue against 'the importation of institutionalized plea bargaining' on the basis that legal practitioners in England would then be in the same situation as their US counterparts. In US courts, McConville and Bridges (ibid.) observe, negotiations 'are based upon stereotypical
12 Similarly, McConville and Mirsky (1993: 181) claim that PTRs amount to 'little more than bargaining over charge and sentence discounts'. This seems to me an overstatement of the case settlement function of PTRs. In both of the courts I studied, for example, while settlements were certainly encouraged, major emphasis was also placed on obtaining accurate listing information (such as whether the trial length estimate or the trial date itself needed to be changed).

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categories founded on prior record, lawyers' evaluations of the strength of the case formed from skeletal outlines of the "facts" and judges' and lawyers' estimates of the "worth" of a case'. The findings presented here, however, suggest that negotiations in English courts are already characterized by the same or similar factors that McConville and Bridges (1993) attribute to US legal practitioners.13 Therefore, while PTRs do facilitate negotiations and may lead to settlements in cases which otherwise would have gone to trial, I suggest that it is the attitudes articulated at PTRs rather than PTRs themselves which are of greatest concern. This is not to argue that 'informalism' is the more dominant influence on the manner in which cases are processed, or that procedural reform is unnecessary; such a statement would be absurd. Rather, it is to argue that efforts to reform the criminal process must be informed by the attitudes and beliefs of those who work there (Feeley 1983). Rules, after all, do not function independently of those who apply them; indeed, the real meaning of rules arises from how they become transformed into the established patterns of behaviour which guide individuals' actions. Therefore, it is likely that efforts to protect defendants' rights through the regulation (or prohibition) of PTRs will have but limited success unless the features of legal practitioners' attitudes to negotiated settlements discussed here are also addressed. Indeed, in the absence of deeper transformations which would target the attitudes of, rather than merely the range of procedures available to, legal practitioners, procedural reforms or innovations in themselves will probably leave untouched defendants' exclusion from plea negotiations.
Towards a formal system of plea negotiations?

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Although the existence of plea negotiations in English courts has traditionally been vehemently denied, recent events surrounding the Royal Commission on Criminal Justice have made the introduction of a formal system of negotiations increasingly likely. Support for the establishment of such a system has come from Barbara Mills, the Director of Public Prosecutions (Sage 1992), and a Bar Council report (Seabrook 1992). In July 1993, the Royal Commission on Criminal Justice recommended that a system of 'sentence discounts' be established in which judges would give lighter sentences to defendants who pleaded guilty than to those who were convicted following a trial (Sage 1993; Shaw and Johnston 1993). The Commission's recommendation moved a step closer to realization in October when Michael Howard, the Home Secretary, announced various measures which he proposes to introduce in a Criminal Justice Bill (Brown et al. 1993; Travis et al. 1993). These include a system of'sentence canvassing' in which judges inform defendants in open court of the sentence reduction they can expect if they plead guilty prior to a full court hearing (Travis and Dyer 1993: 1). Although Viscount Runciman, Chairman of the Royal Commission, said that implementation of the Commission's proposals would 'significantly reduce the risk of the innocent being convicted and the guilty walking free' (Shaw and Johnston 1993: 1), his claim is refuted by research on negotiations (Baldwin and McConville 1977; McConville and Mirsky 1987; McConville et al. 1991). It is also contrary to the findings
13 Indeed, the Home Secretary's recent indication that a system of'sentence discounts' similar to that proposed by the Royal Commission will be established (Travis and Dyer 1993) suggests that in this regard at least, the English court system will increasingly resemble the system in the USA (see also McConville and Mirsky 1993).

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of the Commission's own research which suggested that a small but significant proportion of defendants were pleading guilty to offences of which they claimed they were innocent (McConville and Bridges 1993; Zander 1992, 1993). Indeed, given the Royal Commission's concern over wrongful convictions, it is ironic that its recommendations should include the establishment of a framework for formal plea negotiations, for, as this paper has demonstrated, legal practitioners are more concerned with 'crime control' than with 'due process' (Packer 1968). In this context, negotiations will continue to function according to legal practitioners' conceptions of 'just' and 'appropriate' outcomes; and these conceptions rest on presumptions of defendants' moral culpability and substantive guilt. The establishment of formal plea negotiations can only lead to a further strengthening of the crime control ethos of the criminal justice system.
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