Anastasia Ferin Knight Racial Implicit Bias in the Plea Bargaining Process

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?

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

minority clients, suggesting that there are indirect connections between a client’s race, the type of legal representation they receive, and their subsequent plea bargain outcomes (Edkins, 2010; Eisenberg & Johnson, 2003; Kramer et al., 2007; Lizotte, 1978). This can also have a cyclical effect, such that many black defendants who are persuaded to accept these pleas end up in prisons with stark racial disparities, further perpetuating general stereotypes about black criminality and thus influencing the decisions of future cases (Eisenberg & Johnson, 2004; Johnson, 2003; Kutateladze et al., 20143). With the combined effects of disparities in type of legal representation, stereotypes about black criminality, and implicit preferences for white defendants, plea bargains can act as a form of guaranteed sentencing for black defendants when implicit biases are unmitigated and unchallenged (Edkins, 2010; Kutateladze et al., 2014; Kutateladze & Lawson, 2018; Lizotte, 1978).

Conclusion

There is limited research exploring the plea bargaining process, and even fewer studies investigating how mental processes such as implicit bias affect defense attorneys and prosecutors’ decisions to offer plea bargains (Edkins, 2010; Eisenberg & Johnson, 2004; Greenwald & Krieger, 2006; Kang et al., 2011). However, current research suggests that defense attorneys negotiate more severe plea bargains for their minority clients due to the impact of racial implicit biases on their decision making processes, resulting in higher rates of criminal pleas with fewer charge reductions and more prison time for black defendants (Edkins, 2010; Eisenberg & Johnson, 2003; Kramer et al., 2007; Kutateladze et al., 2016; Kutateladze & Lawson, 2018; Smith & Levinson, 2011). Research on the implicit biases that affect plea bargain offers has the potential to lead to improvements in how a defendant’s case is reviewed, and inform recommendations for mandated sensitivity and bias training for legal officials (Eisenberg & Johnson, 2003; Kang et al., 2011; Kutateladze et al., 2016; Kutateladze & Lawson, 2018). Future research should explore how factors such as criminal records, a lack of private counsel, and socioeconomic status, may affect black individuals’ plea options compared to their white counterparts, especially since early research has indicated that these extralegal factors have a strong influence on minority overrepresentation in rates of incarceration (Edkins, 2010; Kramer et al., 2007; Kutateladze et al., 2016; Kutateladze & Lawson, 2018; Rousseau & Pezzullo, 2013; Smith & Levinson, 2011).

References

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