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September 18, 2020

"In the Shadows: A Review of the Research on Plea Bargaining"

The title of this post is the title of this great new document from the Vera Institute of Justice.  Here is part of the report's introduction:

In whatever form it takes, plea bargaining remains a low-visibility, off-the-record, and informal process that usually occurs in conference rooms and courtroom hallways — or through private telephone calls or e-mails — far away from the prying eyes and ears of open court.  Bargains are usually struck with no witnesses present and made without investigation, testimony, impartial fact-finding, or adherence to the required burden of proof.  Moreover, little to no documentation exists of the bargaining process that takes place between initial charge and a person’s formal admission of guilt in open court, and final plea deals that close out cases are themselves rarely written down or otherwise recorded.  As such, plea deals, and the process that produces them, are largely unreviewable and subject to little public scrutiny.  Thus, despite the high frequency with which plea deals are used, most people — aside from the usual courtroom actors — understand neither the mechanics of plea bargaining nor the reasons so many people decide to plead guilty.

Plea bargaining has, however, become the central focus of a growing, but still small, body of empirical research.  In recent years, mounting concerns about plea bargaining’s role in encouraging the widespread forfeiture of constitutionally guaranteed trial rights and associated procedural protections — and its critical role in fueling mass incarceration — has stimulated further urgency in understanding how the process works.  Indeed, an array of questions regarding its fairness have emerged.  Over the last few decades, prosecutorial leverage in plea negotiations has increased exponentially as changes in substantive law have bolstered criminal penalties and given prosecutors a wider range of choices to use when filing charges (such as mandatory penalties, sentencing enhancements, and more serious yet duplicative crimes already well covered by existing law).  But increased exposure to harsher penalties has not been matched with increased procedural protections for defendants.  Prosecutors’ wide powers in plea bargaining still go largely unchecked, and there are no meaningful oversight mechanisms or procedural safeguards to protect against unfair or coercive practices, raising fears about arbitrariness and inequality.  Given this lack of regulation, concern has also grown over the extent to which innocent people are regularly being induced to plead guilty, as well as plea bargaining’s role in perpetuating racial and ethnic disparities in criminal case outcomes — for example, plea bargaining practices that send more Black people to prison or jail than similarly situated white people.

Plea bargaining’s full impact on the legal system and justice-involved people remains unknown, but empirical research on this little understood yet immensely influential practice has begun to emerge.  In order to provide an accessible summary of existing research to policymakers and the public, the Vera Institute of Justice (Vera) examined a body of empirical studies that has developed around plea bargaining. Although this review is not exhaustive, it provides a picture not only of the current state of scholarship on plea bargaining, but also of the gaps in knowledge that must be filled.

September 18, 2020 at 10:49 AM | Permalink


My brother and his co-defendant took a plea deal they were supposed to receive the same if not similar sentences. Yet the parole board changed his codefendants parole violation to 90 days which consequently has breached their plea bargain. My brother has served 15 more years than his codependent so far. His co-dependent was released in 2005. I cannot get anyone to help us with this . Also the parole board told my brother his parole violation would be changed to 90 days but they did not and when he's asked for the transcripts of that meeting they've lost them and they lost the recording of that meeting. Do you know what the laws are regarding that breach of the plea deal . This is in the state of Oregon. I am his sister and I'm trying desperately to find someone who can point me in the right direction as to how we can handle this.

Posted by: Kimberly Roof-George | Sep 19, 2020 11:49:49 PM

Plea bargaining is a scourge and should be banned or severely curtailed. The most minimal reform would be to lock the DA into the first offer (or the final one) and then allow the defendant to decide whether to take it to trial. That would remove the penalty for taking it to trial, which in almost all cases turns out to be cruel and unusual.

It's unfair in all ways. With that one reform, you still send the convicted to prison, but without the penalty for taking it to trail, sentences are shorter and more fair.

Keep in mind, prison is punishment. Even for a few months. Life destroying.

A further reform could be forcing speedy trials. No more endless months and years with life on hold. Plea bargaining is an evil that should be eradicated totally, but until it is, make it fair.

Posted by: restless94110 | Sep 20, 2020 4:10:53 PM

There are several reasons why locking a prosecutor into the first plea offer is a bad idea.

1) The concept of a plea bargain is just that a bargain. In exchange for not putting the child victim of a sex case through the trauma of testifying, I am willing to agree to a sentence on the low end of the sentencing range. In exchange for your cooperation against the shooter, I am willing to reduce murder 1 to murder 2. If only the prosecutor is bound by the plea offer, there is no good reason for the defendant to take it. And if my plea offer is unlikely to be accepted, why would I voluntarily reduce my options at the inevitable post-trial sentencing.

2) Additional evidence -- some good for the defendant and some bad for the defendant -- often comes to light while the case is pending. IF it is unclear which of two co-defendants fired the fatal shot at the start of the case, I might offer both a mid-range sentence. If, later in the case, I get good evidence that it was defendant A who fired the fatal shot, I should be able to adjust the two offers to reflect their actual relative responsibility for the murder. If additional children come forward, I should be able to adjust the offer to increase the punishment in exchange for not filing new charges.

I also think that if you change the basic rules for plea bargaining, you will get higher offers and higher sentences. While the defense side talks about the trial penalty, most prosecutors think of it as a plea bonus. For most prosecutors, the plea offer is something on the low end of what they think is an acceptable disposition of the case and is somewhat lower than what the prosecutor thinks is the right disposition of the case.

Posted by: tmm | Sep 21, 2020 1:46:27 PM

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