Last year, in Berkshire County, Ma., prosecutors charged two men in separate assault and battery cases. Both were in their 30s, neither had any prior criminal history, and both cut deals in exchange for pleading guilty. Their deals differed significantly. One man received a short probation sentence that included rehabilitation services; the other received a long probation sentence and fines.
Some 95% of U.S. criminal cases are resolved via plea bargain.. “Criminal justice today is for the most part a system of pleas, not a system of trials,” wrote Supreme Court Justice Anthony Kennedy in 2012. What’s more, they happen almost entirely in secret, often negotiated out of sight of a judge and always out of sight of a jury.
Now, some prosecutors are working on prying open the “black box” of plea bargaining. Hoping to make the process fairer and more transparent, they’re partnering with academics to track data related to their plea
deals. Other prosecutors are trying to reduce the number of bargains, reports the Christian Science Monitor.
Plea bargaining will likely always be needed, but there is now an increasing demand to improve the process. “We have really needed this kind of data, this kind of research, for a long time,” says law Prof. Ronald Wright of Wake Forest University, who researches criminal prosecutors. “It’s groundbreaking.”
“We know about the outcomes [of plea bargains], and we know something about the inputs,” he adds. But the middle of the process, “all the formulations that go into making the offers, we’ve been blind to that for more than a century.”
Plea negotiations mostly hinge on prosecutorial discretion. Their bail recommendation could keep a defendant in jail, thereby ratcheting up pressure to accept a plea. Another example is threatening more serious charges if a defendant refuses to accept a plea, known in the legal community as the “trial penalty.”
Since last April, researchers at Duke University have been helping prosecutor offices in Durham County, N.C. and Berkshire County, Ma., document felony plea negotiations more thoroughly. Both district attorneys – Satana Deberry in Durham and Andrea Harrington in Berkshire – were elected after promising progressive reforms to their offices.
Duke law Prof. Brandon Garrett, leader of the project, says he and his colleagues will begin working with another local prosecutor office in Utah this spring. They hope to partner with public defender offices this year and collect plea bargaining data from their side.
“Plea bargaining is rapidly becoming a system of ultimatums delivered by prosecutors, rather than real negotiation,” says Martín Sabelli, president of the National Association of Criminal Defense Lawyers.