A Preliminary Assessment of the Impact of Plea Bargaining Among a Sample of Waiver-Eligible Offenders

• Author: Patrick G. Lowery,John D. Burrow
• DOI: 10.1177/1541204014537089
• Published date: 01 July 2015
• Date: 01 July 2015
• Subject Matter: Articles

Article

A Preliminary Assessment of

the Impact of Plea Bargaining

Among a Sample of

Waiver-Eligible Offenders

John D. Burrow

1

and Patrick G. Lowery

1

Abstract

This study examines the use of plea bargaining among a sample ofwaiver-eligible juveniles. Using focal

concerns as ourtheoretical foundation, we examine whether concerns about public safety and blame-

worthinesshelp to shape plea bargaindecision making. Data from a juvenilecourt in one South Carolina

jurisdiction were analyzed using logistic regression (N¼241). This research finds that several factors

influencethe plea bargain decision includingtype of offense, numberof victims, age, and race. Addition-

ally, the analysisshows that there are several interactive effects betweenrace, first-time offenders,and

presence of an attorney. The theoretical and policy implications of these findings are discussed.

Keywords

plea bargaining, waiver-eligible, juveniles, focal concerns

Introduction

Plea bargaining has been a fixture of the contemporary criminal justice system for over a half cen-

tury, with some scholars tracing its use as far back as 1804 (Alschuler, 1979). The use of plea bar-

gains received formal judicial recognition in Bordenkircher v. Hayes (1978). First noting that the

guilty plea and plea bargain are integral components of the criminal justice system, the Supreme

Court noted that during the give and take of plea negotiations, prosecutors will inevitably present

difficult choices to defendants, including the right to a trial (Bordenkircher v. Hayes, 1978). Should

a defendant forgo making a deal and go to trial, the tough choices that defendants must make are

deemed legitimate tools so long as prosecutors do not deter them from exercising a protected right

or base the plea on impermissible factors such as race (Bordenkircher v. Hayes, 1978).

While once rare, plea bargaining is now a common and accepted legal practice in both the crim-

inal and juvenile justice systems notwithstanding a myriad of criticisms accompanying its usage

1

University of South Carolina, Columbia, SC, USA

Corresponding Author:

John D. Burrow, Department of Criminology & Criminal Justice, University of South Carolina, 1305 Greene St, Columbia,

SC 29208, USA.

Email: burrowj@mailbox.sc.edu

Youth Violence and JuvenileJustice

2015, Vol. 13(3) 211-227

ªThe Author(s) 2014

Reprints and permission:

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DOI: 10.1177/1541204014537089

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(Alschuler, 1979,pp. 216–17). Plea bargains now account for as many as 84%of cases disposed of at

the federal leve l (Teeter, 2005), and as many as 95%of disposed cases at thestate level (Kyckelhahn &

Cohen, 2008). A number of studies have focused on plea bargaining in criminal courts (Ball, 2005;

Humphrey & Fogarty, 1987; Savitsky,2009; Wynne & Hartnagel, 1975).Even more, there are a num-

ber of studies that have examined how juvenile adjudications impact sentencing decisionsat the adult

level (Goldstein-Breyer, 2010; Marrus, 2004; Redding, 2003; Roberts, 1997; Sanborn, 1998).

However, there remains a dearth of knowledge on how the plea bargaining process functions for

juveniles, especially those who may be waiver-eligible or reverse-waived back to juvenile court.

Even more, the degree to which waiver-eligible juvenile offenders may be burdened by their prior

adjudications akin to what is seen in criminal courts is largely unknown. This study seeks to shed

some light on this area of inquiry by examining the plea decisions of county solicitors involving

juveniles eligible to be waived to adult court. Specifically, this research will examine the use of plea

bargains in cases, where juvenile offenders commit offenses that make them eligible for transfer

(discretionary) to adult court.

Juvenile Plea Bargaining

As a whole, little empirical research has focused exclusively on plea bargaining processes among

juveniles (Mears, 2000). Though a number of older studies from the late 1970s examined the emer-

ging plea bargaining trend in juvenile courts (Hayeslip, 1979; Sagatun & Edwards, 1979), they can-

not necessarily provide us with any insights into how these processes operate in contemporary

juvenile courts. Notwithstanding that fact, these older studies showed that plea bargaining had

gained a foothold in juvenile courts in many areas of the country. Additionally, they found that pro-

secutors were increasingly using plea bargains in order to extract confessions (admissions of guilt)

from juveniles. Many prosecutors themselves reported that they did not have a plea bargaining pol-

icy in place to aid in their decision making with regard to juveniles (Sagatun & Edwards, 1979,

p. 20). Further, another study found that sentencing outcomes were negatively impacted for juve-

niles particularly when they entered not guilty pleas (Hayeslip, 1979).

Much of what we do know about the juvenile plea bargaining process has been derived from qua-

litative studies and legal/statutory analyses conducted during the 1990s (Sanborn, 1992, 1993). In an

analysis of state statutes governing plea bargaining, Sanborn (1992) found that juveniles are at a

major disadvantage because judicial inquiries into the voluntariness of pleas (Boykin inquiries) are

not mandatory by juvenile courts in a majority of the states (p. 133). More importantly, he found that

states provide more protection to adults who plead guilty versus juveniles especially in light of the

fact that few courts truly investigate the voluntariness of pleas that involve juvenile offenders

(Sanborn, 1992, p. 143).

The extant literature also suggests that courts, especially adult courts, may assess penalties for

exercising one’s right to a trial (Johnson, 2005; Nardulli, Flemming, & Eisenstein, 1985; Spohn,

1992; Ulmer & Bradley, 2006). As Nardulli, Flemming, and Eisenstein (1985) point out, there is

general agreement that a ‘‘trial penalty’’ exists, but there is less agreement regarding its actual form.

Though less studied, there is also evidence that juvenile offenders also encounter a similar ‘‘trial

penalty’’in the juvenile court system. For example, Redlich (2010) notes that the incentives that pro-

mote avoidance of the ‘‘trial penalty’’ in adult courts may result ‘‘false plea bargaining’’ in juvenile

courts because juveniles are less capable of defending their best interests. Notwithstanding this

belief, there is no empirical research that has documented the degree to which this ‘‘penalty’’ pro-

motes or encourages juveniles to bargain against their best interests in the hopes that they may secure

a more favorable outcome.

Mears (2003) suggests that with the increasing tendency to blend the juvenile court with criminal

court processes, there will also likely be an increase in the use of plea bargaining. Mears (2003) also

212 Youth Violence and Juvenile Justice 13(3)