Plea and Charge Bargaining Research Summary Prepared by: Lindsey Devers, Ph.D. CSR, Incorporated 2107 Wilson Boulevard, Suite 1000 Arlington, VA 20001 www.csrincorporated.com Under Contract No. GS-10F-0114L, Order No. 2008-F_08151 Janaury 24, 2011 Contents Introduction ....................................................................................................................................... 1 Background ........................................................................................................................................ 1 Prosecutorial Discretion .................................................................................................................... 1 Legal Characteristics ........................................................................................................................ 2 Extralegal Characteristics ................................................................................................................ 2 Summary Findings ............................................................................................................................ 3 Policy Implications and Future Research ........................................................................................ 3 References .......................................................................................................................................... 4 i Research Summary: Plea and Charge Bargaining INTRODUCTION resources necessary to go to trial, especially if they are incapacitated and presented with an “Plea bargaining is a defining, if not the explicit outcome (Bar-Gill and Ben-Shahar, defining, feature of the federal criminal 2009). justice system” (Brown and Bunnell, 2006:1063). In plea bargaining, a defendant is Those who are not in favor of plea bargaining faced with a charge at arraignment. Typically argue that defendants are better off without this is the maximum charge or punishment it because each case would then be processed that the defendant will be held to if he or she impartially. Prosecutorial budgets would only goes to trial. The prosecutors will present the allow prosecution in those cases where there defendant with an opportunity to plead guilty was strong evidence to convict. Thus, fewer to a lesser charge or to the original charge innocent defendants would be coerced into with less than the maximum sentence. In guilty pleas. In addition, violent and chronic theory, the charge presented limits the offenders would be less likely to receive penalties faced if the defendant decides to go lenient punishment. Consequently, some to trial. While being found innocent or being believe that without plea bargaining the acquitted is, of course, the best way for number of cases coming to trial would remain defendants to avoid jail time and other the same or would be reduced (Bar-Gill and penalties, going to trial is perceived as risky, Ben-Shahar, 2009:740). because it is impossible to predict what a jury This research summary will show that plea will decide. As a result, many defendants bargaining results in disparate treatment enter pleas (Bar-Gill and Ben-Shahar, 2009). concerning both legal and extralegal characteristics, especially regarding those BACKGROUND who are more likely to be granted lenient sentences. Moreover, the research will outline According to the Bureau of Justice Statistics the discrepancies between those cases (2005), in 2003 there were 75,573 cases processed through plea bargaining and trials, disposed of in federal district court by trial or and those when there is disparate treatment plea. Of these, about 95 percent were and defendants are granted greater leniency disposed of by a guilty plea (Pastore and when a charge is reduced. Research shows Maguire, 2003). While there are no exact that these discrepancies are primarily due to estimates of the proportion of cases that are prosecutorial discretion. Each of these issues resolved through plea bargaining, scholars is discussed below. estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process (Bureau of Justice PROSECUTORIAL DISCRETION Statistics, 2005; Flanagan and Maguire, Some argue that the plea bargaining process 1990). is more cost efficient than having all cases go There are a few theories as to whether the to trial. Furthermore, some researchers and plea bargaining process is fair and equitable. legal scholars have reiterated that the Proponents argue that docket pressures are practice is fair, just, and procedurally sound too great and that prosecutors lack the time (Bar-Gill and Gazal-Ayal, 2006; Bowers, to pursue all indictments because there are 2008; Brown and Bunnell, 2006; Goodman simply too many (Stuntz, 2004). and Porter, 2002; Lee, 2005; McDonald and Furthermore, defendants may not have the Cramer, 1992). While this process has been 1 Research Summary: Plea and Charge Bargaining deemed fair by some, numerous other characteristics of the court, including researchers and practitioners find disparities caseload volume, court community size, within the system among those defendants violent crime rates, and size of the who accept a plea and those who go to trial. region’s black population. The plea bargaining process has been Overall, the majority of evidence illustrates criticized for allowing prosecutors too much that those who accept a plea are likely to discretion compared with judges, who are receive a lighter sentence compared with held to concise sentencing guidelines (Burke, those who opt for a trial. This disparity exists 2007; Finkelstein, 1975; Ma, 2002). because prosecutors are granted wide Prosecutors have been found to use threats discretion when reducing charges. These that coerce defendants into accepting pleas to findings are problematic because they secure a conviction when the evidence in a demonstrate that if a defendant opts to case is insubstantial (Finkelstein, 1975). invoke the Sixth Amendment right to a trial Moreover, several researchers have noted by jury, he or she will likely have a more that prosecutorial biases can influence the unfavorable outcome. plea bargaining process, because prosecutors are given such wide latitude when they LEGAL CHARACTERISTICS reduce charges for offenders (Burke, 2007; Ma, 2002). Research shows that legal characteristics, such as the seriousness of the current offense Prosecutorial discretion also has resulted in and prior record, increase the likelihood that harsher penalties for those defendants who a defendant will plead guilty (Champion, opt for going to trial, rather than accepting a 1989; Meyer and Gray, 1997; Ulmer and plea. Many researchers have found that those Bradley, 2006). Other known legal who go to trial are more likely to receive characteristics that increase the chance of harsher sentences than those who accept a accepting a plea include the defendant’s prior plea when comparable offenses are record; the seriousness of the crime considered (Albonetti, 1991; Britt, 2000; committed; the strength of the evidence; the Dixon, 1995; Engen and Gainey, 2000; use of a public or private defender; and the Kurlychek and Johnson, 2004; Steffensmeier detention status of the offender (Champion, and Demuth, 2000, 2001; Steffensmeier and 1989; Kellough and Wortley, 2002; Ulmer and Hebert, 1999; Steffensmeier et al., 1993, Bradley, 2006). Pretrial detention has a 1998). Additionally, several methodologically strong effect on the decision to offer and sound studies have found that those who pled accept pleas. Those who are taken into guilty were more likely to receive lighter custody are more likely to accept a plea and sentences than those who would have gone to are less likely to have their charges dropped trial (King et al., 2005; Piehl and Bushway, (Kellough and Wortley, 2002). More 2007; Ulmer and Bradley, 2006). These generally, legal characteristics increase the studies have found the following: likelihood of accepting a plea, because there is more uncertainty in outcomes for both f Defendants tend to receive harsher chronic and more serious offenders. sanctions if they exercise their right to a jury trial. EXTRALEGAL CHARACTERISTICS f There is a wide range of prosecutorial discretion, and this varies greatly by Extralegal characteristics to consider in the region. research on plea bargaining include race, f Punishment is determined by the socioeconomic status, gender, and age. To seriousness and type of offense, prior date, research suggests that some extralegal criminal history, and the contextual characteristics make it more likely that a 2 Research Summary: Plea and Charge Bargaining defendant will not receive a reduced plea f Legal variables, including the charge. Studies that assess the effects of race seriousness of the current offense and find that blacks are less likely to receive a prior record, are important factors in reduced charge compared with whites determining whether a charge will be (Farnworth and Teske, 1995; Johnson, 2003; reduced and by how much. Kellough and Wortley, 2002; Ulmer and f The majority of research on race and Bradley, 2006). Additionally, one study found sentencing outcomes shows that blacks that blacks are also less likely to receive the are less likely than whites to receive benefits of shorter or reduced sentences as a reduced pleas. result of the exercise of prosecutorial discretion during plea bargaining (Johnson, f Evidence concerning gender and age in 2003). Studies have generally found a this research has been inconclusive. relationship