Online Publication of Undergraduate Studies 2018, Volume 9, Issue 2
Racial Bias in Plea Bargains
Racial Implicit Bias in the Plea Bargaining Process Anastasia Ferin Knight
The American criminal justice system disproportionately targets black adults, with their incarceration rates approximately five to seven times higher than their white counterparts (Kutateladze, Andiloro, & Johnson, 2016; Zeng, 2018). Research suggests that these incarceration disparities are not solely due to discrepancies in arrest rates, but are instead affected by the plea bargaining process that often takes place between arrest and incarceration (Edkins, 2010; Kutateladze et al., 2016; US Sentencing Commission 2010). A plea bargain is a legal deal in which a defendant waives their right to trial and pleads guilty, resulting in one of two outcomes: a criminal plea which includes a felony charge and results in a criminal record, or a non-criminal plea, which includes a misdemeanor charge or dropped charges altogether (Rousseau & Pezzulo, 2013). Plea bargains are central to the functioning of the legal system, as they offer a lower sentence than would be risked at trial, and without them, courts would be unable to operate due to the high number of cases which need to be processed. Thus, over 95% of criminal cases in the United States end with plea bargains (Heiner, 2015; Kutateladze & Lawson, 2018). Due to the extensive use of plea bargains in the criminal justice system, it is important that those who control the plea bargaining process (i.e., defense attorneys and prosecutors) understand the implications of implicit biases for their decisions (Edkins, 2010; Eisenberg & Johnson, 2004; Greenwald & Krieger, 2006; Heiner, 2015; Kang et al., 2011). Implicit biases, or unconscious perceptions, can be especially detrimental for black individuals utilizing the plea bargaining process due to the prevalence of racial profiling stemming from stereotypes and misrepresentations of black criminality (Kutateladze & Lawson, 2018; Rousseau & Pezzullo, 2014; Rudman, 2004). Since prosecutors offer plea bargains based on their perceptions of clients, this can translate into significant discrepancies in the process of offering a plea bargain (Edkins, 2010; Eisenberg & Johnson, 2003; Greenwald & Krieger, 2006; Johnson, 2003; Kang et al., 2011; Lizotte, 1978; Smith & Levinson, 2011). For example, research indicates that race is a significant predictor for receiving a more severe and/or extended sentence when using the plea bargaining process (Johnson, 2003), and yet this differential treatment is less prominent if a defendant goes to court, suggesting that defense attorneys and prosecutors implicit biases shape plea bargain outcomes (Johnson, 2003; Kutateladze et al., 2016). Thus, this literature review explored the question: how do the racial implicit biases of defense attorneys and prosecutors influence the plea bargaining process? 12 | Literature Reviews
Effects of Implicit Bias on Plea Bargains The implicit biases that defense attorneys and prosecutors hold have a more significant influence on the outcomes of plea bargain deals than those of judges, which makes them crucial to understand (Johnson, 2003; Kutateladze et al., 2014). These biases are often more consequential for prosecutors because they are usually only presented with the basic demographics of the defendant (e.g., their race, socioeconomic status, and the crime committed) when offering a guilty plea (Kutateladze, Andiloro, Johnson, & Spohn, 2014). As such, without information on the context surrounding the defendant’s crime, prosecutors might make sweeping generalizations about defendants and base their perceptions on stereotypes and implicit biases, as opposed to contextual and factual information (Kutateladze et al., 2014). Furthermore, existing stereotypes of black adults can support defense attorneys and prosecutors’ racial implicit biases, such that they may unconsciously view a black defendant as a threat regardless of the context of the case (Kutateladze et al., 2016; Rudman, 2004; Smith & Levinson, 2011). Thus, a racially biased prosecution lawyer may perceive a black defendant as more dangerous and their crime as more severe, making them more likely to offer a poor quality plea that includes a criminal charge (Kutateladze et al., 2016; Rudman, 2004; Smith & Levinson, 2011). Although most defense attorneys believe in the legal system’s duty to act fairly and offer equal legal representation (Edkins, 2010; Eisenberg & Johnson, 2004), research suggests that they still display implicit preferences for white defendants over black ones (Smith & Levinson, 2011). Thus, when defense attorneys recommend that their clients accept or decline plea bargains, they are more likely to recommend that their white clients accept better quality pleas with less jail time (Edkins, 2010; Eisenberg & Johnson, 2004; Rousseau & Pezzullo, 2013; Smith & Levinson, 2011). Due to these implicit preferences for white defendants, black defendants are over three times more likely to be persuaded to accept a plea resulting in jail time (Edkins, 2010; Kramer, Wolbransky, & Heilbrun, 2007; Kutateladze et al., 2014; Kutateladze et al., 2016; Rousseau & Pezzullo, 2013). Further, public defenders are a type of defense attorney assigned to clients who cannot otherwise afford legal representation, and have been found to accept longer prison sentences than private defense attorneys, despite utilizing the same legal arguments (Edkins, 2010; Lizotte, 1978). The most notable difference in a public defender and a private defense attorney’s caseload is the race of their clientele, since public defenders primarily represent
