Academic journal article Boston College Law Review

Criminalizing Race: Racial Disparities in Plea-Bargaining

Academic journal article Boston College Law Review

Criminalizing Race: Racial Disparities in Plea-Bargaining

Article excerpt


The treatment of African Americans in the criminal justice process has been the subject of intense scrutiny in both academic literature and the popular press. Many have argued that policing practices disproportionately target black individuals,1 who are also more likely to be arrested and become defendants in criminal cases.2 These black defendants are incarcerated more often and sentenced to longer terms in prison relative to white defendants.3 The end result of these disparities is a pair of dispiriting statistics that are well-known to many-black males are incarcerated at a rate that is five times that of white males,4 and one third of black males can expect to be imprisoned at some point in their lives.5

Much of the recent empirical work on racial disparities in the criminal justice process has centered on its two endpoints-the arrest and initial charging of individuals and sentencing decisions by judges. These studies generally find that black individuals are more likely to be arrested and charged than white individuals6 and that black defendants receive harsher sentences than white defendants.7 The reasons for these observed disparities are the subject of vigorous academic debate.8

Setting that debate aside, merely focusing on these endpoints ignores critical steps in the criminal justice process that follow an individual's detention but precede the sentencing hearing. Critically, judges make their sentencing decisions conditional on the crime (or crimes) for which the defendant was convicted, which, together with other factors, determines a sentencing range.9 The crime of ultimate conviction is the result of a process controlled by a different set of actors in the system.10 Surprisingly, few studies have examined the role of race in determining defendants' outcomes in these pre-sentencing stages of the criminal justice process.11

This Article fills this gap in the literature by examining disparities in the plea-bargaining process that precede judges' sentencing decisions and constrain their sentencing discretion. Using data obtained from the Wisconsin Circuit Courts, this Article documents striking racial disparities in these earlier stages.12 White defendants are twenty-five percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge (i.e., black defendants are more likely than white defendants to be convicted of their highest initial charge).13 As a result, white defendants who face initial felony charges are approximately fifteen percent more likely than black defendants to end up being convicted of a misdemeanor instead.14 In addition, white defendants initially charged with misdemeanors are approximately seventy-five percent more likely than black defendants to be convicted for crimes carrying no possible incarceration, or not to be convicted at all.15

More in-depth analyses reveal two patterns that may shed light as to the underlying dynamics behind these racial disparities. First, disparities in plea-bargaining outcomes appear to be driven by cases in which defendants have no prior convictions.16 In cases involving defendants with prior convictions there are no significant racial disparities in plea-bargaining outcomes. 17 This pattern suggests that in the absence of evidence of a defendant's recidivism risk (for example, when there is no criminal history), prosecutors may be using race as a proxy for the defendant's likelihood to recidivate. 18 Second, racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies relative to cases involving more severe offenses.19 This second pattern suggests that prosecutors may be using race as a proxy for a defendant's latent criminality (for example, propensity to commit a severe offense in the future) in cases involving low-level offenses.20

In addition to uncovering racial disparities in the plea-bargaining process, this Article contributes to a pair of current policy debates in the criminal law arena. …

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