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Black defendants treated unequally in plea bargain process

 Much has been written about racial profiling by police. Much has been written about federal judges giving longer prison terms to minorities. New research shows that African-American defendants also face discrimination at several points between the arrest and sentencing.

The study suggests race plays a role in the severity of charges and what prosecutors offer in plea bargains. On average, white defendants end up with better outcomes, such as less jail time or no jail time. In fact, the disparity is greater for misdemeanor cases than it is for serious felonies. It underlines the need for needed reforms – and a skilled defense lawyer.

Race was the main difference

Loyola researcher Carlos Berdejó and his team analyzed over 30,000 misdemeanor cases in Wisconsin spanning seven years. He examined the initial charges, whether the person made bail, whether charges were reduced or dismissed, what they pled guilty to, and what the ultimate punishment was. He accounted for age, gender, prior convictions and other factors, including the experience of the prosecutors and defense lawyers who handled each case. From every angle, the most significant factor was the person’s race.

  • White people who initially faced felony charges were 25 percent more likely than black defendants to have those felonies dropped or reduced.
  • Whites with no criminal history were much more likely to have charges reduced than blacks who had no criminal history.
  • White defendants who initially faced misdemeanor charges were 75 more likely than black defendants to be end up with (a) a conviction with no jail time or (b) no conviction at all.

As a result of these disparities, the average jail sentence for black defendants convicted of misdemeanor crimes was 40 days, compared to an average of 22 days for white defendants.

Racial inequality was most stark in misdemeanor cases

Surprisingly, Berdejó found no significant different between whites and blacks who had prior convictions. Their sentences were about the same. There was also little disparity between black and white defendants who were charged with the most serious felonies. Their sentences were nearly the same.

But there was a wide gap — in the process and the outcomes — between blacks and whites facing misdemeanor charges if they had no prior convictions. Why such a racial gap for low-level and first-time offenders, compared to more equal punishment for “hardened criminals?”

Berdejó suggests that race becomes a “proxy” for the likelihood that an individual with no criminal history will commit future crimes. White defendants apparently get the benefit of the doubt more often, while court officers are more skeptical if the person is African-American.

 Prosecutors have a major role in this middle portion of the criminal justice system. They decide whether to charge the person, and what the specific charges will be. They decide whether to request bail, and whether to drop or amend certain charges. They offer the plea deals, and they make sentencing recommendations to the court.

Because the vast majority of cases are resolved by plea bargain, more study and more scrutiny of this make-or-break stage of the system is needed to improve fairness.

A misdemeanor charge is always serious

Misdemeanor convictions are not trivial. Going to jail is stressful and humiliating. Fines and court fees increase financial hardships. The criminal record can affect employment, housing, student loan eligibility, voting rights, even volunteer work. Pleading guilty to a single offense raises the stakes if that person is ever arrested in the future.

For anyone facing criminal charges, it is important to assert your constitutional rights to (a) remain silent and (b) speak with an attorney before answering any questions. It is even more important to protect your rights if your race puts you at a disadvantage at every stage of the process.

Source:  “Criminalizing Race: Racial Disparities in Plea Bargaining” (Carlos Berdejó, Loyola Law School)


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