Plea Bargaining as Constitutional Contradiction: A Comparative Study of Criminal Procedure in America and Brazil, 1804-1898
Why do gaps between law on the books and law in action emerge in some societies but not others? Consider plea bargaining in the United States. The Constitution guarantees people accused of felonies a host of procedural rights, including the right to trial by jury, protection against self-incrimination, and the opportunity to confront one’s accusers. Yet today in America, an exceptionally high proportion of people convicted of serious crimes — approximately, 98 percent — plead guilty and therefore exercise none of these rights. Scholars of law and society have traced the origins of widespread plea bargaining to the aftermath of the Civil War and have proposed various explanations for the procedure’s rise. Strikingly, however, these accounts have concentrated on individual jurisdictions in the American North and have not seriously registered the legacies of slavery or colonialism as important historical factors. Relying on Derrick Bell’s theory of “constitutional contradiction,” on original and secondary sources, and on comparative analysis of criminal procedure in nineteenth-century postcolonial Georgia and Rio de Janeiro, this study investigates why plea bargaining became commonplace after the abolition of slavery in America but not in Brazil. The study compares the cases across three political-economic dimensions: racialization, criminalization, and infrastructural power. It proposes that marked change in due process rights promised to formerly enslaved people, combined with a surge in caseloads and insufficient court infrastructure, helps to explain the procedure’s emergence in the American South.
LOCATION:WJH 1550 STATUS:CONFIRMED DTSTART:20240913T160000Z DTEND:20240913T173000Z END:VEVENT END:VCALENDAR