A new study from Carlos Berdejó of Loyola Law School finds significant racial disparities in plea deals that suggest that prosecutors may be using race as a proxy for criminality.
Recent studies on racial disparities in the criminal justice system have focused on arrests, initial charging, and sentencing, and they generally find that African Americans are more likely to be arrested and charged – and they receive harsher sentences – than white people. Fewer researchers have examined the plea-bargaining process, even though the overwhelming majority of criminal cases in the United States are resolved through plea deals.
Those deals determine what crime the defendant is convicted for, which in turn sets the applicable sentencing guidelines range and statutory minimum and maximum sentences. Because prosecutors set the starting point for plea negotiations by deciding which initial charges to file, and they are empowered to reduce serious charges to less serious ones, drop concurrent charges involving less serious crimes, reduce felony charges to misdemeanors, and drop or reduce all charges carrying a possible incarceration sentence so that the defendant serves no jail or prison time, prosecutors often have more power over sentences than judges do.
But just like sentencing judges, prosecutors may be subject to implicit biases when exercising their discretion. With limited information, time, and resources, prosecutors may consciously or subconsciously rely on race in evaluating which defendants are likely to commit crimes in the future, and those determinations are reflected in their plea offers.
Analyzing more than 30,000 Wisconsin cases over a seven-year period, the study found significant racial disparities in the plea-bargaining process. White defendants were 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge; black defendants were more likely than whites to be convicted of their highest initial charge. As a result, white defendants who faced initial felony charges were approximately 15 percent more likely than similar black defendants to be convicted of a misdemeanor instead. White defendants with no prior convictions were over 25 percent more likely than black defendants with no prior convictions to receive a charge reduction.
The disparities were even greater in misdemeanor cases. White people facing misdemeanor charges were nearly 75 percent more likely than black people to have all charges carrying potential imprisonment dropped, dismissed, or reduced to lesser charges. White defendants charged with misdemeanors who had no prior criminal history were 46 percent more likely than similar black defendants to have all charges carrying a potential sentence dropped or reduced to charges that carry no potential imprisonment.
The study concluded that disparities in plea bargaining outcomes appear to be driven by cases in which defendants have no prior conviction, which "suggests that in the absence of evidence of a defendant's recidivism risk (e.g., when there is no criminal history), prosecutors may be using race as a proxy for the defendant's likelihood to recidivate."
Second, racial disparities in plea bargaining outcomes are greater in cases involving misdemeanors and low-level felonies, which suggests that when the seriousness of the offense tells them little or nothing about the defendant's propensity to commit a severe offense in the future, prosecutors may be relying on the presumption of dangerousness that has long burdened African Americans.
Misdemeanors involve less serious offenses and shorter sentences than felonies, but they comprise the vast majority of criminal cases and have been shown to play a significant role in the criminalization of black males. Misdemeanor convictions can carry major consequences, including incarceration. The study found that black defendants originally charged with misdemeanors are not only more likely to be convicted than white defendants, but they are also more likely to be punished by incarceration than white defendants. Even people who receive a fine or probation as punishment for their misdemeanor convictions are likely to be imprisoned if they are unable to pay their fines or violate a condition of their probation. A misdemeanor conviction becomes part of the person's criminal history and can be considered in a future case when determining bail and sentencing, and can result in loss of eligibility for student loan assistance or public housing.
Advocates suggest that, in light of this evidence of racial bias in plea bargaining, prosecutors should state their reasons for plea offers on the record to create transparency, and should be required to collect and share data about plea offers in order to expose any disparities.