Unshackling Plea Bargaining from Racial Bias

53 Pages Posted: 24 Jun 2020 Last revised: 5 May 2021

Date Written: June 24, 2020


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.

Keywords: plea bargaining, police, negotiation, racial discrimination, prosecutor, defense attorney, African American defendants, lynching, justice, crime, criminal justice reform, implicit discrimination, explicit discrimination, anti-racist, racist, lynching, slavery

Suggested Citation

Greenberg, Elayne E., Unshackling Plea Bargaining from Racial Bias (June 24, 2020). Journal of Criminal Law and Criminology Volume III, Issue 1, St. John's Legal Studies Research Paper 20-0011, Available at SSRN: https://ssrn.com/abstract=3634786 or http://dx.doi.org/10.2139/ssrn.3634786

Elayne E. Greenberg (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Queens, NY 11439
United States

HOME PAGE: http://www.stjohns.edu/academics/graduate/law/academics/centers/careycenter

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