The scales of justice: Balancing neutrality and efficiency in plea-bargaining encounters

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Abstract

This article examines how the judge balances the normative obligation of neutrality with the bureaucratic demand for efficiency in recorded plea-bargaining encounters. The analysis demonstrates three kinds of judicial conduct by employing the methodology of conversation analysis. First, the judge displays an attitude or an outlook toward the accused or aspects of the case in an embedded manner. Second, the judge facilitates the bargaining process. The judge organizes an opening and a closing of the bargaining encounters, and elicits bargaining activities from the attorneys. Third, the judge moves the bargainers toward resolution. The judge may overtly suggest a bargaining proposal, subtly intervene in the bargaining positions to show approval or disapproval, and press the bargainers to overcome obstacles. The analysis shows that the judge's conduct influences the bargaining processes and outcomes. The implication of this article is twofold. On the one hand, justice in plea bargaining is implemented in practice and is shaped by the practical ways in which judges manage their role in the interactions. On the other hand, the judge's role is shaped by the normative obligation of neutrality as reconciled with the practical demands for efficiency. Therefore, the administration of justice in plea bargaining both shapes and is shaped by the judge's conduct as balanced between neutrality and efficiency.

Original languageEnglish
Pages (from-to)33-54
Number of pages22
JournalDiscourse and Society
Volume16
Issue number1
DOIs
Publication statusPublished - 2005 Jan

All Science Journal Classification (ASJC) codes

  • Communication
  • Language and Linguistics
  • Sociology and Political Science
  • Linguistics and Language

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