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March 22, 2022

"Bargaining Without Bias"

The title of this post is the title of this article authored by Cynthia Alkon and recently posted to SSRN.  Here is its abstract:

Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system.  A key player within the criminal legal system who could dramatically reduce or eliminate these disparities are prosecutors.  Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer.  Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system.  There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases.  The first core problem is that plea bargaining is largely unsupervised and prosecutors have extraordinary power and virtually unlimited discretion in the process. Prosecutors regularly engage in hard bargaining tactics and there is no meaningful check on prosecutorial bias in deciding what offers to make on what cases.  The second core problem is that plea bargaining can exacerbate racial disparities and bias.  The third core problem is that once a case comes into the criminal legal system, and the case is charged, a prosecutor’s first offer acts as an anchor in the negotiation, regardless of whether the offer reflects bias.  Unlike in other negotiation contexts, the defendant in a criminal case most often has no meaningful option to counter or walk away from the prosecutor’s offer.

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems.  The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made.  All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer.  This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making.  However, it is not realistic to expect that prosecutors, even in offices that adopt blind charging and plea bargaining policies, would remain blind to who the individual defendant is in all cases, particularly in cases where the first offer is made after arraignment.  Therefore, the individual fix is to train prosecutors on empathy.  Prosecutors' offices should expand and improve training and programs on empathy to change how prosecutors view defendants.  People tend to have empathy for, and in the criminal context give the benefit of the doubt to, those who are "more like them" — including being the same race and socio-economic group. Empathy for others is a skill that can be taught, like trial skills, negotiation, or writing.  Prosecutors' offices need to include empathy skills as an integral part of their overall training. Improved empathy skills would help prosecutors to stop looking at defendants as simply "criminals" — a label that is often racially-based. Instead, more prosecutors could learn to see defendants, in the words of Bryan Stevenson, as "more than the worst thing" they have ever done.

March 22, 2022 at 10:37 PM | Permalink


It would be so refreshing if the defense would quit wailing when it already holds the ultimate trump card. If you don't like the government's offer (because it's racist or fascist or non-empathetic or whatever), just say this. It's real easy: "Thanks but no thanks, Mr. Prosecutor. If this is the best you can do, we'll be going to trial. If you want to try again, I'll be Mr. Nicey and listen, at least for the next couple of days. After that, you'll be getting my motions, all 30 of them. My client has rights guaranteed by the Constitution and we'll be exercising them. Hope you're ready to prove your overcooked case."

When, at your sole discretion, you can tell the prosecutor to put any offer he comes up with in a dimly lit area, you don't need anything else.

Posted by: Bill Otis | Mar 22, 2022 11:17:13 PM

@Bill, that might not be entirely fair. As a criminal defense attorney once put it to me, “Most defendants did *something*.” There are very few who are entirely innocent. But there is still a pretty wide range of outcomes, between the most lenient and the most severe charge imaginable for the same conduct.

I hope we can agree that if the prosecutor's negotiating posture is consciously or subconsciously different based on the color of the defendant's skin, that is a bias we ought to remove from the system. I have no idea how prevalent such bias actually is, but I am sure it must exist to an extent.

Posted by: Marc Shepherd | Mar 23, 2022 9:27:14 AM

The hard things is figuring out what is bias and what isn't. What goes into a plea offer involves the nature of the crime, the history of the defendant, the location of the crime (i.e. rural counties have a tendency to be slightly more severe than urban areas on less serious offenses because they have a small number of the most serious offenses).

My state used to do sentencing disparity studies. The last published studies revealed an overall disparity, but when you went by type of offense (violent vs. drug vs. property vs. sexual vs. dwi) and by class within type, the results started going all over the place with whites being more likely to go to prison for some types and classes of offenses and African-American or Hispanics being more likely to go to prison for other types and classes. In any case, the differences were maybe 1-2% for most classes. And things got even more confusing when you added in criminal history.

Additionally, it is hard to separate out neighborhoods. Unfortunately, in my jurisdiction, neighborhood impacts how likely witnesses are to continue to cooperate which is something that should be considered in making offers. And neighborhood indicates something about the race of the victims and offenders.

Posted by: tmm | Mar 23, 2022 11:48:35 AM

Marc Shepherd --

A couple of points.

-- The prosecutor's attitude during negotiation simply doesn't make a difference as long as the defendant has a failsafe mechanism to nullify it, which he does. He can simply tell the prosecutor that his proposed deal is unacceptable. He suspects this is so because of the prosecutor's (alleged) racism in formulating it, but whatever the reason may be, no deal will be made on those terms. "Negotiations are over unless you come back with something better. If you don't, get ready to prove your case at trial BRD."

A prosecutor's putative bias in bargaining can be 100% checkmated by defense counsel's power to drop in the sewer any bargain he dislikes.

-- Of course, allegations of prosecutorial racism are easy to make, and are made, not because they're true, but to advance the principal defense aim of drawing attention to anything other than the client's conduct. In a case I did, this was exactly the plan, US v. Olvis, 97 F.3d 739 (4th Cir. 1996) (can be found here: https://casetext.com/case/us-v-olvis-3).

The case arose in Norfolk but I took it over on appeal. The defense allegation, in pre-trial motions, was that the USAO charging pattern among the defendants was racially biased, as the white defendants got more lenient treatment. An accusation like that is quite serious in my view, so I called the defense lawyer and left a message asking him to tell me which AUSA was the bigot, and I would see to it that there would be discipline if not complete separation (I was a supervisor at the time).

It's now a little more than a quarter century later. I'm still waiting for the return call.

A unanimous panel of the Fourth Circuit agreed with my argument that the differences in charging resulted from -- ready now? -- differences in the various defendants' provable behavior, not from racism. The whole thing was just a dodge. There was never any racism; the only thing going on was that Tony Olvis, who was one tough, bad dude, wanted to get some delay so that government witnesses could "get their minds right."

I think Tony is still in jail. I certainly hope so.

P.S. One of the judges on the Fourth Circuit panel was Sam Ervin III, the son of Sam Ervin of Watergate Senate hearing fame.

P.P.S. The defense lawyer who made the scurrilous and false allegation of racism against my colleague in Norfolk never paid a price for the smear. That of course is standard procedure.

Posted by: Bill Otis | Mar 23, 2022 3:36:23 PM

@Bill: Let us suppose that there were no racially biased prosecutors in the office you supervised. Still, it's a rock-solid guarantee that they exist somewhere. There is no such thing as a field with no bad apples, whether it's prosecutors or cellists. Except cellists don't send people to prison.

So the question becomes, what mechanism exists to stop the bad ones? Your suggestion: take the case to trial. That's not an option, because you and I agree these defendants are guilty. And yet, if the white defendant got a better bargain than the similarly situated Black defendant, it's still unfair. Both realistically have no choice except to take the deal, whether fair or not.

Posted by: Marc Shepherd | Mar 23, 2022 9:40:05 PM

Bill seems to forget that just a few days ago he claimed the high rate of guilty pleas was in part because defense attorneys want to "do more cases and rake in more fees." If this was true (which it's not, most defendants are represented by public defenders, who aren't paid on a per-case basis), then it would reflect a structural problem that inhibits defendants from exercising their so-called "trump card" by refusing plea offers. Bill does not allow consistency or thoughtfulness deter his endless whining about lawyers who dare defend the constitutional rights of criminal defendants.

Posted by: Curious | Mar 24, 2022 8:56:10 AM

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