[From Our Partners] Improving Equity and Fairness in Plea Negotiation
One practice that defines the pretrial period is plea bargaining. Despite the wide use of plea bargaining, little is known about the practice, largely because it happens outside public view and with little documentation. In an effort to uncover plea bargaining practices, ISLG funded two studies from two research partners through the Safety and Justice Challenge (SJC): the Urban Institute to conduct a mixed-methods study of plea bargaining processes in one SJC site, Philadelphia, Pennsylvania; and Loyola University Chicago and the University of Missouri-St. Louis (UMSL) to conduct mixed-methods studies of plea bargaining processes in two SJC sites, Milwaukee County, Wisconsin and St. Louis County, Missouri.
Urban Institute: Philadelphia, PA
Using administrative data as well as a case file review, surveys of prosecutors, and interviews with prosecutors, defense attorneys, and people who accepted pleas, researchers explored decision-making throughout the plea negotiation process.
Key findings include:
Efficiency in case processing was one of the most important goals of plea bargaining, along with providing justice to victims, defendants, and the community. However, there were few official mechanisms described by assistant district attorneys to review plea bargaining decision-making.
Each division of the office has their own approach to plea bargaining. While the study could not assess the level to which plea bargaining is achieving desired goals, nearly half of the assistant district attorneys surveyed thought innocent people “sometimes” or “often” accept pleas.
Pretrial custody status was an important factor to assistant district attorneys, who felt more comfortable offering a plea with incarceration if the person had already been detained.
Several assistant district attorneys believed there were racial disparities in plea offers due to policing practices, prior records, and how implicit bias can impact the wide discretion of assistant district attorneys.
The researchers provide several of recommendations emerging from the study’s findings, including: developing national standards for prosecutorial data collection, instituting training and mechanisms to measure compliance around officewide policies, lowering case backlogs through withdrawals, diversion, and expanding community-based responses to crime, revising sentencing guidelines, and eliminating heavy trial penalties.
Loyola University Chicago and UMSL: Milwaukee County, WI and St. Louis County, MO
Using administrative data as well as interviews and surveys with stakeholders, including prosecutors, public defenders, judges, private attorneys, and system-involved persons, researchers explored how prosecutors, judges, and defense attorneys approach and make decisions surrounding the plea negotiation process, in addition to investigating the factors that affect plea outcomes.
Key findings include:
Prosecutorial discretion was the primary determining factor of what a plea bargain looked like, and most of the guidance that line prosecutors receive about how to charge cases and negotiate pleas is informal. In both counties, there is consensus that judges do not interfere with negotiated plea agreements.
Prosecutors, defense attorneys, and judges rely on several sources of information when navigating the plea negotiation process. The nature of the offense, the strength of the case, and the defendant’s criminal history are the most salient factors considered by court officials.
COVID-19 has influenced all aspects of the plea negotiation process by formalizing the process. Before the pandemic, most plea negotiations were conducted in person. The typical face-to-face process transitioned to email or other forms of communication during the pandemic, which minimized informal discussions. Guilty pleas decreased significantly throughout the pandemic.
The findings suggest a tension between consistency and individualization in plea processes and outcomes. Additionally, efforts to expedite the resolution of cases backlogged due to the pandemic led to the absence of the “human element” of the process. The report suggests several avenues for reform, including developing guidelines for initial plea offers, expediting the negotiation process, and enhancing the transparency of the system.
About the Safety & Justice Challenge
In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge development grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, the Foundation engaged the Institute for State & Local Governance (ISLG) at the City University of New York (CUNY) to establish and oversee an SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.