Contrary to what is seen in television courtroom dramas, jury trials in America are rare. Instead, attorneys resolve most cases an estimated 90-95 percent - through pleas, in which defendants waive their right to trial and agree to plead guilty to certain charges.
Plea bargaining is arguably the most effective way for prosecutors to exercise their immense discretion. It is through pleas that the United States has the worlds highest incarceration rate, with people of color being particularly affected.
We'll have to figure that out. Two of us, after promising to change how local criminal cases are handled, were elected as district attorneys. Prosecutors may dismiss charges as part of the plea, or reduce felonies to misdemeanors, taking prison off the table. They may seek consecutive or concurrent sentences. Yet, historically, this process, and the inner workings of prosecutor offices across the country, have not been transparent.
Consider two white men in their 30s who were recently charged with assault and battery in Berkshire County, to illustrate the importance of prosecutorial discretion. Keiner of the men had prior criminal records. Given the similarity between the cases, similar sentences may be expected. Although both men received probation, one received a shorter sentence and fines, while the others shorter term included rehabilitative services.
In the majority of jurisdictions, there is no way to know why a person was sentenced less harshly than the other. Perhaps one had a better defense lawyer. Possibly one prosecutor was harsher than the other? Did one victim express preference, or did the judge alter one of the plea agreements? Did one defendant reject the first offer, but the other accepted immediately? While it is common for lawyers to exchange offers, negotiations arent documented in court records, and these questions remain unanswered. It is a notorious black box that can conceal inconsistencies and discretionary abuses.
The plea process is now being tracked for the first time. The district attorneys offices in Berkshire County and Durham County, N.C., have partnered with the Wilson Center for Science and Justice at Duke Law to bring plea negotiations to light.
Our new Plea Tracker Project began last spring with a launch. Prosecutors in Berkshire and Durham now document reasons for their final recommendations to the court and information about how a plea agreement evolved until the case was resolved. The Plea Tracker Project is an unprecedented look at how prosecutors exercise their discretion and a unique example of judicial officers checking their own practices.
Consider the other two assault cases. The Plea Tracker allows us to see why one case resulted in a shorter sentence the prosecutor's goal was to ensure that the defendant' s mental health needs were met. The defendant in the other case was perceived to be at a greater risk of recidivism, resulting in severing probation.
Tracking pleas allows an office to examine practices and develop new approaches. We can determine if there are disparities in offers being made for similar cases, whether one prosecutor tends to be inconsistent with others in the office, i.e., race disparity in outcomes, and / or equitably treated victims. We may identify gaps in the availability of therapeutic services and determine if alternative treatment options to incarceration are available and utilized. In turn, we believe plea tracking improves our system's legitimacy. It may increase public confidence in the manner in which prosecutors exercise discretion.
If we are to overcome the widespread racial and other disparities that plague our criminal justice system, prosecutors must check their own biases to ensure that we offer mercy fairly, regardless of skin color or socioeconomic factors. The plea tracker may be a powerful tool to identify the causes of disparities in plea outcomes and develop practical solutions. Even adding friction to plea negotiations by requiring prosecutors to consider each offer may help curb implicit biases, according to research.
We hope that participating in the Plea Tracker Project will help shape broader debates about how communities invest their resources and reimagine the justice systems role in society. As the nation grapples with the injustices of our criminal justice system, district attorneys must take ownership of their institutions roles in perpetuating systems of oppression. The power and discretion of prosecutors are at the heart of our criminal justice system. Leading by example is by opening plea practices to scrutiny and welcoming the results. We hope to see more prosecutorial offices spotlight their own plea practices.
Andrea Harrington is the district attorney in Berkshire County. Adele Quigley-McBride is a postdoctoral fellow at the Wilson Center for Science and Justice at Duke Law School. Satana Deberry is the district attorney in Durham County, N.C.