Understanding Plea Bargaining in a New Progressive DA’s Office: How Line Prosecutors Understand and Implement Progressive Goals Through Plea Decisions

• Author: Catherine A. Grodensky,William E. Crozier,Elizabeth J. Gifford,Brandon L. Garrett
• DOI: http://doi.org/10.1177/00938548221140356
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 3, March 2023, 429 –453.

DOI: https://doi.org/10.1177/00938548221140356

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© 2022 International Association for Correctional and Forensic Psychology

429

UNDERSTANDING PLEA BARGAINING IN A NEW

PROGRESSIVE DA’S OFFICE

How Line Prosecutors Understand and Implement

Progressive Goals Through Plea Decisions

CATHERINE A. GRODENSKY

WILLIAM E. CROZIER

ELIZABETH J. GIFFORD

BRANDON L. GARRETT

Duke University

Plea deals resolve the vast majority of prosecuted criminal cases in the U.S. legal system. Prosecutors hold disproportionate

power in plea bargaining and have been blamed for driving punitiveness and racial disparities. Progressive prosecutors aim

to reverse these trends, but little is known about how they will alter plea practices. We conducted qualitative interviews with

all the assistant district attorneys (ADAs, N = 19) in a mid-sized office with a newly elected progressive DA. Interviews

discussed how ADAs implemented office policies and progressive goals in plea bargaining. Prosecutors described working

to implement five main progressive goals in their plea decisions: (a) dismissing low-level drug possession charges; (b) avoid-

ing over-penalization, particularly for “victimless” crimes; (c) declining to prosecute weak cases; (d) encouraging open

communication with defense; and (e) promoting racial equity. Prosecutors’ descriptions of how these goals guided case deci-

sions illuminate how progressive prosecution may affect the criminal justice system through plea bargaining.

Keywords: decision-making; qualitative methods; law; criminal justice system; sentencing

Prosecutors wield considerable power in the U.S. judicial system, in large part because

they have a great deal of discretion in criminal cases, including to dismiss or defer,

determine charges, and make bail and sentencing recommendations. Scholars have dis-

cussed that prosecutors’ use of power and discretion may have contributed to mass

AUTHORS’ NOTE: This study was supported with a dissertation grant award from the Law & Science pro-

gram at the National Science Foundation (SBE #2016661) and with funding from Arnold Ventures, Chan

Zuckerberg Initiative, and Charles and Lynn Schusterman Family Philanthropies. We would like to acknowl-

edge Karima Modjadidi, Ellie Studdard, Micalyn Struble, Rachel Ruderman, and Lucy Callard for their help

with data collection and analysis, and Jennifer Teitcher and Adele Quigley-McBride for their thoughtful com-

ments in conceptualizing the framing of the manuscript. We would also like to thank the Durham District

Attorney’s Office for their time and collaboration on the research. Correspondence concerning this article

should be addressed to Elizabeth J. Gifford, Sanford School of Public Policy, Duke University, 302 Towerview

Rd., Durham, NC 27708; e-mail: beth.gifford@duke.edu.

1140356CJBXXX10.1177/00938548221140356Criminal Justice and BehaviorGrodensky et al. / Plea Bargaining in Progressive DA’s Office

research-article2022

430 CRIMINAL JUSTICE AND BEHAVIOR

incarceration in the United States (Raphael & Stoll, 2013; Western, 2014; Zimring, 2020).

Over the past decade, increasing numbers of prosecutors have campaigned for office

based on more progressive ideals and seek to consider local prosecution priorities such as

reducing reliance on pretrial detention and prison sentences (Davis, 2019). Such progres-

sive prosecutors have outlined a platform of strategies such as reducing reliance on cash

bail, incorporating treatment and rehabilitation into criminal sentences, reducing puni-

tiveness for nonviolent offenses, and not seeking the death penalty (Pickerell, 2020b;

Sklansky, 2017).

Of criminal cases that are not dismissed, the vast majority are resolved through a plea

bargain rather than a trial (Bibas, 2006). Although the rules that structure plea bargaining

and practices vary somewhat across states and localities, plea bargains essentially constitute

agreements between prosecution and defense regarding the specific charges that a person is

convicted of, and the terms of the resulting sentence, which are generally more lenient than

what would have been expected at a trial. Compared with trials, pleas require fewer resources

and less judicial involvement, although judges in some jurisdictions may sometimes still

reject or alter terms of a plea. This relative freedom from judicial involvement could make

pleas ideal avenues for prosecutors to produce more lenient sentences unilaterally and rely

less on incarceration. Past research suggests progressive prosecutors seek to reduce puni-

tiveness and coercion, meaning that their plea bargaining tactics may rely less on leverage

and more on building an understanding of the person charged with the criminal offense and

their needs than the “law and order” tactics of traditional prosecution (Davis, 2019; Pickerell,

2020b; Sklansky, 2017). However, little is known about whether and how line prosecutors

would implement progressive strategies in plea bargaining.

Through qualitative interviews in a recently-elected progressive district attorney’s office,

we explored how line prosecutors engaged with and implemented the progressive goals of

their office in plea bargaining. Although previous studies have described the stated goals of

elected prosecutors (Davis, 2019; Pickerell, 2020b; Sklansky, 2017), this study is novel in

its use of qualitative methods to dig deeper into how individual plea bargaining decisions

are approached in an office implementing progressive reforms. This study is also novel in

profiling a mid-sized jurisdiction, as mid-sized jurisdictions are different from (and more

prevalent than) the large districts that have been the subjects of progressive prosecution

study, such as Philadelphia and Chicago. Findings shed light on the challenges of accom-

plishing progressive goals while balancing interests in assuring public safety.

PROSECUTORIAL DISCRETION IN PLEA BARGAINING

We have multiple reasons for focusing on plea bargaining in this study. First, plea bar-

gaining constitutes the vast majority of case dispositions in U.S. criminal courts (Bibas,

2006). As the U.S. Supreme Court aptly stated: “criminal justice today is for the most part

a system of pleas, not a system of trials” (“Lafler v. Cooper,” 2012, p. 3). Pleas have increas-

ingly supplanted trials, primarily for reasons of efficiency. Trials are highly regulated and

procedural, requiring significant preparation time from the attorneys involved as well as

additional court resources and time from judges and juries. Although the United States sig-

nificantly increased criminal justice spending in the 20th century, most of that money went

to hiring police and prosecutors and building jails, and little of it funded additional court

resources that would support the number of trials required to dispense with all the new