The Problem With Plea Bargaining: Differential Subjective Decision Making As An Engine Of Racial Disparity In The United States Prison System

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Over the last three decades, the rate of incarceration in the United States has risen at an unprecedented rate. This is true while the rate of criminal activity has dropped steadily. Further, while the rate of much criminal activity is equal across races, the rate of incarceration for Blacks has risen far faster than for whites. The United States now incarcerates more than 1 in 100 American adults. This make the United States the current world leader in both prison population size, and percentage of citizens in prison. While the reasons for this are numerous and complicated, the hypothesis of this project is that plea bargaining is a cause in fact for both high prison populations and the high levels of racial stratification in prisons. Plea bargaining has become ubiquitous as the primary method of criminal case disposition in the United States. Indeed, the vast majority of criminal convictions are obtained through a plea bargain. Plea bargaining lowers the transaction cost of criminal prosecutions which combines with political policies favoring large scale incarceration to drive up prison populations. Further, plea bargaining indirectly pits defendants against each other in a multiplayer Prisoner's Dilemma that induces defendants to take worse bargains than they otherwise might. Moreover, the decrease in transaction costs is generally larger for cases against poor defendants which correlates to a decrease in transaction costs for prosecuting Black defendants. Since prosecutors are interested in maximizing successful prosecutions and minimizing costs, they are encouraged to prosecute a disproportionate number of Black defendants. Additionally, a defendant negotiates based upon his subjective views of the criminal justice system and his expectation of conviction. He bases these views on objective reality as well as on social, cultural, and economic factors. This analysis leads African American defendants to bargain with a more pessimistic estimate of how they will fare as compared to white defendants, resulting in overall worse, bargains. Finally, a norm of plea bargaining as the accepted method of case disposition has emerged as an institution. This norm perpetuates the social factors that facilitated the disparate bargains in the first place.

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