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Problem with Plea Bargaining: Differential Subjective Decision Making as an Engine of Racial Stratification in the United States Prison System

NCJ Number
Douglas Savitsky, Ph.D., J.D.
Date Published
28 pages
This paper discusses the idea that plea bargaining is a necessary function of the U.S. legal system that has resulted in the large and racially disparate American prison system.

The primary focus of this research was to explore how and when a plea bargain is reached, and how plea bargains at the micro level merge into a macro level phenomenon that then comes back around to influence the use of plea bargains. The author posits that plea bargains contribute to the racial inequality found in American prisons because they favor prosecutors' efforts to conserve resources and induce defendants, particularly poor, Black defendants, to take worse bargains than they otherwise might have done. The author presents a sociological model of plea bargains that consists of three primary elements: 1) a plea bargain is an institutional arrangement that enables a prosecutor to secure a conviction at a lower cost than if she or he were to take the case to trial; 2) bargains struck by Black defendants tend to be worse than those struck by similarly situated White defendants; and 3) due to the weaker bargaining position of Black defendants, prosecutors need to make fewer concessions to reach a plea bargain. As a result of these three elements, plea bargains in the criminal justice system aggregate to high levels of imprisonment and a disproportionately high rate of Blacks in prison. Furthermore, this imbalance feeds back on defendants, particularly Black defendants, perpetuating perceptions of a criminal justice system in which minorities will have higher costs for defending themselves than White defendants. Figures and references