Bias in plea bargains may contribute to mass incarceration of Blacks

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BY GINA BARTON
MILWAUKEE JOURNAL
SENTINEL/TNS

MILWAUKEE – While the U.S. Constitution gives people accused of crimes the right to a jury trial, the reality is that the vast majority of cases are resolved with plea bargains.

And when it comes to those deals, White defendants fare far better than African-Americans, according to new research by Carlos Berdejo, a professor at Loyola Law School in Los Angeles.

“White defendants are 25 percent more likely than Black defendants to have their principal initial charge reduced to a lesser crime,” according to Berdejo’s study. “As a result, White defendants who face initial felony charges are less likely to be convicted of a felony.”

The powerful players
The disparities are greater in misdemeanor and low-level felony convictions, and they virtually disappear for defendants who have prior criminal convictions, according to the study, which has been accepted for publication in the Boston College Law Review.

Much of the research and discussion around racial disparities in the criminal justice system has centered on sentencing and on racial profiling by police.

Berdejo pointed out that prosecutors, whose duties fall between arrest and sentencing, are arguably the most powerful players in the system because they decide whom to charge and with what.

Database analyzed
To reach his conclusions, Berdejo analyzed Wisconsin’s circuit court database. He looked at Dane County crimes committed after Dec. 31, 1999, that had finished making their way through the circuit courts by Dec. 31, 2006.

He chose Dane County rather than Milwaukee County because the population of Dane County more closely mirrors the population of the state as a whole.

He believes the disparities would be similar — if not worse — in other states.

“Existing evidence suggests that racial disparities in dismissals are greater in southern states,” he writes. “Examining a Midwestern state, such as Wisconsin, provides an opportunity to explore racial disparities in a region of the country where, at least anecdotally, one would expect these to be lower.”

Implicit bias
Berdejo concluded the disparities were likely the result of implicit bias on the part of prosecutors. He posits that prosecutors may be subconsciously using race as a proxy for characteristics such as dangerousness and likelihood of re-offending.

That could explain why the disparities are less when it comes to more serious crimes, he said.

“When you commit a severe felony, race becomes a less useful proxy for how dangerous you are because you have already done something bad,” he said in an interview.

The same holds true for defendants who already have criminal records, he said.

Possible causes
Berdejo examined other possible causes for the disparities, including whether some prosecutors are more likely to offer better plea bargains and whether some defense attorneys are simply better at their jobs.

Controlling for those variables, his findings were substantially similar.

Even though misdemeanors are less serious than felonies, they can result in negative consequences for those convicted, the study says.

Misdemeanor charges are often the first contact with the criminal justice system for African-Americans, who are overrepresented in prisons.

Even if those convictions don’t initially call for jail time, incarceration can result if someone cannot pay a fine or if they break a rule while on probation.

Life-altering move
People who are locked up even for a short time risk losing their jobs, their housing or even custody of their children.

“Most people, when they have contact with the criminal justice system, it’s likely to be a misdemeanor. It’s probably the gateway to the system,” Berdejo said. “Getting a pass from the prosecutor versus getting sent to jail for a month really has a big impact in your life going forward.”

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