A Discourse System for Negotiation

  • Douglas W. Maynard


The concern for discovering whether equal treatment exists in sentencing decisions is only one aspect of a general preoccupation among social scientists with the issue of justice. For those who study plea bargaining, this preoccupation is expressed in two major and implicitly connected questions about the process. First, to what extent are nontrial means of case disposition fair and accurate in terms of separating the guilty and the innocent (e.g., see Newman, 1966: 4)? Second, in view of the fact that trials offer formal safeguards for ensuring fair and accurate decisions, why is plea bargaining so prevalent? That is, what accounts for the high proportion of guilty pleas?


Defense Attorney Blood Alcohol Level Rational Justice Drunk Driving Plea Bargaining 
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  1. 1.
    This point was made in Chapter 1. I follow Lynch (1979: 304) in not claiming to present a “value free” approach, but one which is indifferent to the particular evaluative stance taken in most sociological and legal studies of plea bargaining. The organization of plea bargaining as an achieved, interactional orderliness is not capable of being apprehended without such a policy of indifference.Google Scholar
  2. 2.
    The difference between explicit and implicit bargaining is similar to that between “adversary” and “routine” justice, discussed in Chapter 5.Google Scholar
  3. 3.
    We can here take a cue from Weber (1946: 217), who recognized that “nonbureaucratic forms of domination display a peculiar coexistence: on the one hand, there is sphere of strict traditionalism, and, on the other, a sphere of free arbitrariness and lordly grace.” He concluded that “combinations and transitional forms between these two principles are very frequent” (Weber, 1946: 217). With respect to bureaucratic administration, however, Weber (1946: 20) overemphasized the degree to which rational and substantive justice “collide” with each other instead of similarly existing in what he called “combinations” and “transitional forms.”Google Scholar
  4. 4.
    On the general importance of routine in “street-level bureaucracies,” see Lipsky (1980: 81–86).Google Scholar
  5. 5.
    Objections to the rationality inherent in exchange theory are summarized by Heath (1976: 75), who also defeats at least the more simplistic criticisms (Heath, 1976: 75–89). My objection, note, is not that the exchange perspective rests on a rationalistic foundation. In many ways, the decision to plea bargain a given case is a rational choice for the involved parties. The problem is in overrationalizing the process in a cognitive sense when it can be investigated as a system of routines. These, then, are not nonrational nor irrational, but rational in a mundane, practical sense.Google Scholar
  6. The three opportunities here are not to be confused with what Ikle (1964) refers to as the “continual three-fold choice” that faces a negotiator:Google Scholar
  7. 1.
    to accept agreement at the terms he expects the opponent would settle for (theGoogle Scholar
  8. available“ terms)Google Scholar
  9. 2.
    to discontinue negotiations without agreement and with no intention of resumingGoogle Scholar
  10. 3.
    to try to improve the “available” terms through further bargaining. (Ikle, 1964: 59–60)Google Scholar
  11. 6.
    Clearly, these choices are different from the opportunities I discuss, but a more important point is that Iklé s (1964) unit of analysis is the individual and his perspective is psychological, in that the three choices exist for each party and one is taken by the party according to the calculation of probable gains and losses associated with each choice. In contrast, the approach here is empirical and sociological. The three opportunities are derived from observable patterns in actual discourse as it is interactively constructed.Google Scholar
  12. 7.
    Pruitt (1981) discusses a “strategic choice model” of negotiation containing three elements roughly related to the patterns I discuss: (1) conceding unilaterally, (2) standing firm and acting competitively, and (3) collaborating or using coordinative behavior. Although Pruitt suggests these strategies can be combined and specifically discusses competiveness and coordination as sequential stages of negotiation (Pruitt, 1981: 131–135), the emphasis is on the separateness of the strategies, because the choice of one lessens the possibility of selecting another (Pruitt, 1981: 15–16).Google Scholar
  13. 8.
    See the discussion of “going rates” for normal crimes in the section on Plea Bargaining as Substantive Justice above. For a review of experimental literature on how the concerting of expectations is related to the emergence of “mutually prominent alternatives,” see Pruitt (1981: 57–70).Google Scholar
  14. 9.
    Note here that since “reckless driving” is a lesser charge than “drunk driving,” the DA’s offer might be considered as a concession. However, once again it should be pointed out that there are “going rates” for such offenses as drunk driving and it was standard practice in the jurisdiction studied to reduce drunk driving to reckless driving on first offenses where the blood alcohol level was borderline. Persons were legally considered to be driving under the influence of alcohol if their blood showed an alcohol content of one-tenth of one percent. Because the defendant’s in this case was just at that level, the offer of reckless reflects a well-known negotiational starting point for typically borderline cases. However, there still may be the appearance of a concession being made by the state when the defendant is presented with the offer of reckless driving. See the discussion in Alschuler (1975: 1194) and Neubauer (1974: 238–244).Google Scholar
  15. 10.
    This is not to lose sight of the fact that the core issue in plea bargaining is the question of punishment (Rosett and Cressey, 1976: 80–81). Negotiations on both charge and sentence are ultimately related to that issue. By giving in on the charge, in example (6), the DA was considerably restricted in the parameters of the sentence he could propose.Google Scholar
  16. 11.
    In Chapter 3, we discussed the PD’s capacity for framing a client’s position in such a way as to exhibit a relatively independent assessment of it while talking to bargaining co-participants. Here, a related capacity of the PD appears to be framing a DA’s offer, while talking to the defendant, so as to make defense “advocacy” a visible part of the interaction.Google Scholar
  17. 12.
    While it was PD4 who originally proposed the continuance in (8b), in (8c) DA3 makes the offer and PD4 is in the position of accepting it. Thus, while PD4 may believe “finding out something more” may “make a difference” to the DA, the latter may also be oriented to the way the delay may bring about a weakening of the PD’s position. Rosett and Cressey (1976: 22) have observed, “time is a major weapon used by both sides to bring about the settlement of cases without trial.”Google Scholar
  18. 13.
    Note that PD2, in lines 2–3, first reports the state’s offer, and then his own position. This may reflect the order in which the two positions were originally presented, but the effect also is to make the “fifty four days time served” sequentially implicative (Schegloff and Sacks, 1974: 231). That is, it projects the relevance of a response directed to it and not the “ninety days” quoted in line 2. That move does not succeed in getting such a response (silence, line 4). Instead, DAI corrects PD2’s report of the prosecution’s offer by specifying further aspects of it.Google Scholar
  19. 14.
    Note that there is considerable competition for turn space here. PD1’s first “come on Jeffrey” is overlapped by DA3’s appeal “c-c’mon sixty,” and is repeated. This is an instance of a “segmental adjustment,” a way of signaling to the other party that speaker is not dropping and the other party should (Jefferson and Schegloff, n.d.). The repeated appeal (“C’mon J-”) is cut off just when DA3’s next utterance, “last offer” (line 4), is completed. PD1 then starts up a next utterance with an inbreath and a “listen,” items that push PD1’s repeated proposal for 45 days (lines 5 and 6) until later in the turn. This may allow PD1 to hear whether DA3 is starting another utterance. When it is apparent that DA3 is not, PD1 produces his proposal “in the clear,” that is, outside of overlap.Google Scholar
  20. 15.
    See, for example, La Free (1981). The title of Mather’s (1979) ethnographic treatment of plea bargaining in Los Angeles felony courts, Plea Bargaining or Trial? The Process of Criminal Case Disposition, depicts the dichotomy, although the author’s argument is that it is a false dichotomy.Google Scholar
  21. 16.
    Also note the following information in Table 1. For pattern 1A, more proposals are made by the PD than the DA, although it is difficult to say whether the difference is important. For pattern 2A, the numbers of first-advanced and second-advanced positions which ultimately “won” are nearly even. Finally, the numbers of continuances and trials (1B, 2B, 3B) are almost equal.Google Scholar
  22. 17.
    the “Boulware” approach was named after an officer of the General Electric Company. Stevens (1963: 34–37) discusses the technique as used in labor negotiations.Google Scholar
  23. 18.
    In their review of experimental research, Rubin and Brown (1975: 267) report, “Bargainers achieved higher outcomes when they make extreme initial demands, coupled with gradual concessions, than when they made a large initial concession and remained at that level.” Similarly, Gulliver (1979: 164) suggests that the “predominant” form of bargaining is what he calls “convergent concession-making,” which can involve a “gradual inching toward agreement” or “substantial concessions” to achieve a decision. But see Gulliver’s (1979: 164–165) subsequent discussion of the variety of ways that concessions are expected and made.Google Scholar
  24. 19.
    Mather’s (1974: 198) evidence suggests that felony plea bargaining may be similar to misdemeanor negotiations, in that most cases in the Los Angeles Superior Court were “light” and “dead bang”—that is, not serious and settled with little haggling.Google Scholar
  25. 20.
    In my data, such variation does not seem to exist, at least by type of case. Petty theft, drunk driving, and battery cases (the ones for which I have multiple entries) are all distributed evenly across the decision-making patterns. In felony plea bargaining, Mather (1979) suggests that seriousness of offense and offender characteristics lead to more extended bargaining and, by imputation, to bilaterally patterned decisions or compromises.Google Scholar
  26. 21.
    The argument here draws on the discussion of “preference” in the organization of repair in conversation, as discussed in Schegloff, Jefferson, and Sacks (1977). In observing a preponderance of self-, as opposed to other-correction of errors in conversation, they find this preponderance is produced by the sequential ordering of repair positions, and the way opportunities are organized for locating and remedying of troubles (or repairable items) so as to favor self-correction. The “opportunity structure” is participant managed and the quantity of self-corrections is therefore explained by practices intrinsic to conversation. The “preference” for self-correction refers not to beliefs or attitudes of participants, but to their interactionally organized achievement.Google Scholar
  27. 22.
    Delays, then, may be accountably “last resort” decisions, (Emerson, 1981), whose rational, necessary character (Garfinkel, 1967) is exhibited in the prior employment of those disposition attempts. Furthermore, plea bargaining has a kinship with the means by which negotiations are conducted in a wide variety of settings where disputes or conflicts have arisen. In business, MacCauley (1963) has discussed the hesitancy among manufacturing corporations to invoke the legal process in their exchanges and disputes. The use (or threatened use) of legal sanctions is a last resort invoked when other dispute settlement attempts fail. Similarly, Ross (1970) has documented the reluctance of involved parties to use trials as a means of settling insurance claims.Google Scholar
  28. 23.
    ln the one case in which a DA asserts that he is going to trial and is initially unwilling to entertain any other proposals, it was disruptive and resulted in the PD suggesting that their talk was not plea bargaining. See Chapter 5, example (5) and discussion.Google Scholar
  29. 24.
    lmplicit negotiation here only refers to the use of standard charge reductions and sentences. Bargaining sequences, in simple or elaborated form, are still utilized to reach decisions. See Chapters 4 and 5.Google Scholar

Copyright information

© Springer Science+Business Media New York 1984

Authors and Affiliations

  • Douglas W. Maynard
    • 1
  1. 1.University of WisconsinMadisonUSA

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