Monday, July 6, 2020
Elayne E. Greenberg (St. John's University School of Law) has posted Unshackling Plea Bargaining from Racial Bias (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that his justice rights are compromised because of the deep-rooted racial bias that casts African American men as dangerous, criminal, and animalistic. Because of its efficiency, plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that, the racial bias that has historically existed against African American male defendants, will taint the negotiation process and justice outcomes. The racial profiling by the police, the presumption of guilt rather than innocence of African American men, the prosecutor’s discretion in charging the defendant, and the speed of the justice negotiation itself all contribute to the harsher negotiated sentences that African American male defendants receive compared to white defendants accused of similar crimes. These racially tainted outcomes threaten the integrity of our justice system and the core of our democracy.
This article traces the origins of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: the continuation of slavery, the development of our criminal justice system, and the evolution of plea bargaining The article then explains how the structure of plea bargaining as it is practiced today makes it likely for these historical racial biases to fester and manifest themselves. Culling from the research of cognitive psychologists, dispute system design scholars, and anti-racism educators, this article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.