In a webinar hosted by the Urban Institute speakers addressed the role of plea bargaining by prosecutors and defense attorneys that disproportionally affects defendants of color.
Larger proportions of Black people who accept pleas, the way most criminal cases are resolved, are more likely to be incarcerated than are white people. Black people also received longer sentence lengths on average than their White counterparts.
Andreea Matei of the Urban Institute said structural racism heavily impacts the sentencing guideline matrix that often is used as a baseline in plea negotiations, "The guidelines rely heavily on a defendant's prior record scores to calculate a recommended sentence which we know structural racism can impact depending on policing practices."
In Philadelphia, 80 percent of assistant district attorneys agreed that structural racism is present in the criminal legal system and cited policing practices, criminal history, and implicit bias as contributors to racial disparities in plea offers.
Oren Gur, Director of Research and Policy Advisor in the Philadelphia District Attorney’s Office, acknowledged that the point of arrest is where disparities present themselves most prominently. He noted that African Americans are overrepresented among arrestees in 94 percent of the Philadelphia census tracts.
Findings from a recently released report by the Urban Institute were discussed to increase understanding of factors affecting prosecutors' decision-making in plea bargaining in Philadelphia under a leading "progressive prosecutor," Larry Krasner.
Matei shared that the findings of the report showed that individual assistant district attorneys received little to no training. Matei said 62 percent of prosecutors surveyed said they did not receive training on plea negotiations or framing offers of plea deals.
Prosecutors also use much discretion in plea bargaining negotiations, she said. "This discretion is provided by supervisory control which can vary by unit, and office-wide policies," Matei said.
Steven Austin, Participatory Defender from Mothers in Charge, said prosecutor office policies need to be better explained in order to establish accountability.
"Hopefully we can identify the policies and who's responsible, and make suggestions and changes that will benefit most folks," Austin said.
Of office-wide policies, two, in particular, are significant in plea bargaining decision-making. Matei said the first is that prosecutors should offer defendants the chance to plead guilty with terms shorter than the lower end of the sentencing range or seek supervisory approval to offer sentence lengths above the lower end.
In Philadelphia, if sentencing guidelines recommend less than two years of detention for a crime, the prosecutor should call for alternatives to incarceration, she said.
Krasner's office-wide goal is for an average community supervision period of 18 months or less for felonies and an average of six months or less for misdemeanors.
Matei said the report showed few ways to assess the office's performance, explaining that "A majority of [assistant district attorneys] in our survey said that there were no checks in place to assess whether a plea offer was too lenient or too harsh."
Gur said the lack of data is another issue that affects offices across the nation. "I think this is an issue in Philadelphia in our office and more broadly and also a national issue that many prosecutorial offices face."
According to the report, Philadelphia's data on plea offers are limited. Administrative data provided by courts included some information on whether a case was resolved by negotiated plea and what the sentence was.
The Court of Commons Pleas, where most plea bargaining occurs, had additional information helpful for sentencing and guidelines calculations, including prior records scores which are the defendants' criminal history, and offense gravity scores which rate the seriousness of the offense.
The information does not include data on the substance of the plea negotiations including how many offers were made and the terms for each offer.
The best source of data comes from case files, which also lack information due to inconsistent data entry practices.
"This is partially because plea offers are extended between prosecutors and defense in emails, and phone calls and not documented consistently beyond that in case management systems," Matei said.
The findings of the report also showed that there is no uniform plea bargaining approach. Each unit in Krasner's office has its own response, crafted by policies, unwritten norms, and supervisors.
Suggestions based on the report included having proper records of plea offer details, enforcing proper training, and prosecutors' withdrawing cases with weak evidence rather than extending coercively low plea offers, by using incentives to persuade the defendant to take the plea.