Criminalizing Race: Racial Disparities in Plea Bargaining

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Boston College Law Review, Vol. 59, 2018 (Forthcoming)

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Carlos Berdejó
plea bargaining; racial disparities; discrimination
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paper description
Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints – the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion. This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction. The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony. Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all. Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating racial disparities. While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors. These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.