This is the final part of my term paper, and I have gone ahead and appended the conclusion I wrote, which is brief. I’d thought I might write more of it, but when I pooled the four parts, and looked from the 16 pages to the rubric which required it to be no more than 8-10 in totality, I knew I had to keep it short. It’s been an interesting paper to write, on a topic I was only vaguely aware of. Which means that I’ve achieved what the professor wanted: I learned something.
The avatar of justice is a blindfolded woman. The idea is that Justice does not see the person, only the balance of her scales, the rights and wrongs they have done, and that balance dictates the consequence when wrong has been done to another person (or state, but that is a fine point in this conversation). Color, race, age, gender, financial circumstances, to blind Justice they are all one and the same. However, when we come to discuss plea bargaining and the sentences handed down as the result of the prosecutor’s broad discretion in the bargaining process, we are confronted with a conundrum. Plea bargaining falls, in a sense, outside Justice’s blindfold. As a result, disparities can arise, and it seems clear that they do, but the reason for the seeming inequality is not always as simple as it may appear on the surface.
To define, then, for the purpose of this hypothesis, disparity: the “differential treatment of persons who ought to be treated similarly.” (DM Barry, 1981) In theory, a man and a woman standing before the justice system, accused of the same crime, ought to share equal consequences. A person with any shade of richness to their skin, from purest cream through night-black, ought to be leveled to the same state. Reality shows that instead, men serve a 63% longer sentence than women (Starr, 2014). Bluntly-defined ‘racial’ groups based on culture origin and skin color show a disparity in Asian groups receiving lighter sentences than ‘whites’ who receive lighter sentences than ‘blacks.’ (Besiki Kutateladze, 2014) On the surface, then, the numbers are damning to our justice system, making it appear that Justice has discarded her blindfold, perhaps sliding it up Rambo-style to do battle against only certain groups.
Prosecutors, who hold the power to plea bargain with defendants, are self-examining their policies and procedures to ensure that they are not unjustly holding prejudices and biases against the accused (Besiki Kutateladze, 2014). However, it would be a mistake for them to ride the pendulum too far, and begin to show leniency to a certain group that they perceive as ‘overburdened’ with inequities. In order to come to a balance, instead, examination of the underlying causes for the disparities must be done.
The disparities begin with an arrest. Before the plea bargain is struck, someone has to stand accused of a crime. In the bargaining process, prior arrests are given weight, rather than simply sticking to prior sentencing. This may influence the end results, as arrests are more likely in certain places than in others. Areas with high crime rates are more likely to see arrests for something that might not be so sternly perceived by an officer in a low-crime neighborhood. In other words, a certain callousness in the law enforcement personnel who have boots on the ground contributes to the disparity in arrests, which then influences the charges and plea-bargaining process. Norval Morris points out that the rate of arrest, and later incarceration, of blacks who are living in the middle-class and low-crime neighborhoods are indistinguishable from their neighboring white residents (Norval, 1988).
Perhaps eliminating prior arrests from consideration, or weighting them more reasonably when compared to prior sentences served, would allow a more equitable consequence for the defendant from a poor socio-economic background. Certainly it seems that while there is an inarguable ‘color’ disparity, this stems less from race than it does from culture. The inner-city ghettoes, most often populated heavily by minorities, be they black or Hispanic, led sociologist William Julius Wilson to state that “the increasing social isolation of an increasingly concentrated black underclass.” (Norval, 1988) Added to the problems of the inner-city, the “so-called war on drugs, which began in earnest in 1980. (Savitsky, 2009)” Savitsky makes it “clear that social norms and differences in socio-economic backgrounds lead to different decisions being rational for various parties in the process.” Which in essence is what other studies have found, as well. The culture of inner-city blacks is what leads to their inequitable acceptance of unfair plea-bargains that are weighted on their prior arrest rate, which is artificially high due to their residence in high-crime areas. Savitsky goes on “The prosecution of drug crimes and similar low level criminal activity is inexpensive and fat. This encourages prosecutors to concentrate on these lower level crimes, and on poorer defendants.” This creates a twisted cycle in which black defendants do not trust the system, so they are more likely to make poor plea-bargains as they are sure that proceeding to trial will result in a worse outcome. This is not backed up by statistics, as it has been shown that cases thrown out for black defendants is 9% more likely than for whites following arrests (Besiki Kutateladze, 2014). However, a distrustful and poorly educated defendant served by an overworked and underpaid defense attorney is unlikely to know this, and to fight toward it.
Often, the remedy suggested to reduce crime in a certain area is to establish more of a police presence there. This is shown to be effective, but the result is then obvious that arrests will go up in that area. So “when police maintain a presence in neighborhoods of color and are absent from white neighborhoods, it is no surprise that they will arrest African Americans and Latinos while declining to arrest their similarly situated white counterparts. (Davis, 2014)” So while racial bias may be real, it is mostly unconscious, and may be more based on socio-economic bias than any color of skin influencing the prosecutor, as Davis points out in her article (Davis, 2014).
Is there disparity in plea bargaining along racial or gender-defined lines? Yes, there is. That fact is inarguable when the statistics are scrutinized. However, the disparity existed before the plea-bargaining stage, and it is further refined later, in the sentencing stage, it is not entirely dependent on the prosecutors who define the bargains, or the defense attorneys who argue to accept them. It seems clear that the color imbalance is largely due to lack of education and poverty, stemming from the ghetto culture. The gender imbalance is most likely due to a bias toward considering males ‘more dangerous’ than females, in addition to childcare considerations (Starr, 2014).
Can the disparities in the justice system be ameliorated? Calls for transparency and accountability in the plea-bargaining process coupled with further education for prosecutors on the racial disparity issues come from some (Davis, 2014). Vera calls for “rigorous self-examination” on the part of prosecutors to discover possible unconscious bias (Besiki Kutateladze, 2014). Savitsky points out that the “prosecutor, unlike a defendant, knows the law” which places the burden on them to ameliorate the disparities (Savitsky, 2009). Morris gloomily predicts “changes in the criminal justice system won’t do much about the problem of blacks in crime in America,” which reflects his thesis that the responsibility lies outside the system in the socio-economic situation of inner cities and heavily-populated urban areas (Norval, 1988).
Plea bargaining is so all-encompassing a factor in the American criminal justice system that it cannot be ignored. Indeed, pretending that it is not there will only lead to further disparities and injustices. Rather, the full light of the system should be shone upon the previously hidden affair, to ensure that it is proceeding in an equitable fashion. Higher courts have ordered that arrest records are not to be used in arranging plea bargains, but they are still routinely a part of the prosecutor’s tool box from which they measure out the suggested charges for the defendant.
On the other hand, the gentler side of the pleading, is the reality that since the War on Drugs was rolled out, prison occupancy has skyrocketed. Prosecutors are able to use their discretion when defendants come before them with what could be an onerous charge, sparing a first time offender from becoming that hardened criminal. We have seen that prosecutors use their power to cushion women from the same consequences a man faces, which may help keep family units functional, if the woman takes her mercy and uses it to better her life.
Plea bargaining is, as the ‘bargain’ part of the phrase indicates, a double-edged sword. The prosecutor can offer, threaten, or cajole, but it is the defendant who has the choice of accepting his fate. Will he plead guilty? Nolo contendere? Or the desperate last-ditch Alford, to save his life? Here is another avenue to create a better plea bargain, by educating the defendant about his rights and responsibilities. In the end, the criminal justice system is shaped by this strange, sometimes extra-legal process, and it is vital to understand it, both for good and bad.
Besiki Kutateladze, W. T. (2014). Race and Prosecution in Manhattan. VERA Institute of Justice, 1-10.
Davis, A. J. (2014). In Search of Racial Justice: The Role of the Prosecutor. Legislation and Public Policy, 821-853.
DM Barry, A. G. (1981). Sentencing Versus Prosecutorial Discretion. Journal of Research in Crime and Delinquency, 254-271.
Norval, M. (1988). Race and Crime: What evidence is there that race influences results in the criminal justice system? . Judicature, 111-113.
Savitsky, D. (2009). Plea Bargaining as a Cause of Racial Disparity in Prison Populations. Americal Sociological Conference, 1-21.
Starr, S. B. (2014). Estimating Gender Disparities in Federal Criminal Cases. American Law and Economics Review, 127-154.