UNSHACKLING PLEA BARGAINING FROM RACIAL BIAS.

• Date: 22 December 2020
• Author: Greenberg, Elayne E.

INTRODUCTION 95 I. THE HISTORICAL ETIOLOGY OF RACISM IN PLEA BARGAINING AND THE 105 U.S. CRIMINAL JUSTICE SYSTEM ``A. The Inextricable Link Between the U.S. Criminal Justice 106 System and the Historical Discrimination Against African Americans ``B. The Evolution of Plea Bargaining and the Racialized 114 Presumption of Guilt II. THE PERPETUATION OF IMPLICIT RACIAL BIAS IN PLEA 119 BARGAINING TODAY ``A. Overview of the Process 120 ``B. Characteristics of Plea Bargaining Prime Racialized 124 Justice Outcomes ````1. Prosecutors and Defense Attorneys Fail to Own Their 125 Implicit Biases--Unaware, Unacknowledged, Unexamined ````2. Speed 127 ````3. Discretion 129 III. ORGANIZATIONAL AND PROCEDURAL PRESCRIPTIONS TO RACIALLY 130 DEBIAS PLEA BARGAINING ``A. Organizational Debiasing Reforms: What the District 131 Attorneys' and Public Defenders' Offices Can Do ``B. Procedural Debiasing Strategies for Individual Defense 137 Attorneys and Prosecutors to Use Now ``C. Yes, But 140 CONCLUSION 141 APPENDIX: PLEA BARGAINING WORKSHEET 142 INTRODUCTION

This Article prescribes structural and procedural reforms to debias the plea bargaining process and help mitigate the racialized presumption of guilt that deprives African American male defendants (2) of their justice rights. (3) Prosecutors use plea bargaining, our preeminent form of dispensing justice, to negotiate the resolution of upwards of 97 percent of our criminal cases because it is efficient. (4) However, when legal actors are negotiating the possible justice outcomes for African American male defendants, this efficient plea bargaining process also primes the deep-rooted racial biases of the legal actors to emerge and discriminatorily shape those outcomes. (5) These historically-rooted racial biases, known as implicit racial biases, then form a presumption of guilt for African American male defendants. (6)

Cognitive behavioral psychologists posit that legal actors involved in plea bargaining are more likely than other legal actors to have their implicit biases influence their decision-making process because of the confluence of three factors. First, the legal actors involved in plea bargaining are often unaware of their racial biases because such racial animus is counter to their motivation to work in the criminal justice system "to do good." (7) Second, the speed of the plea-bargaining process allows the legal actors' racial biases to remain unchecked. (8) Third, the broad, unfettered discretion of the legal actors involved in plea bargaining allows racial biases to shape charging and justice outcomes. (9)

Consequently, African American male defendants know all too well that our criminal justice system's supposed guarantees of "justice for all" and "innocent until proven guilty" do not apply to them. Even though "presumption of innocence" is a legal (10) and human right, (11) the data show that African American male defendants suffer a racialized presumption of guilt in every part of the criminal system, including plea bargaining. (12) The data are bone-chilling. In the United States, African Americans are 5.9 times more likely to be incarcerated than whites. (13) By the end of 2017, eighteen- and nineteen-year-old Black males were about twelve times more likely to be imprisoned than their white counterparts. (14) Substantiating the data, the real-life stories of the countless African American male defendants who have suffered discriminatory injustices in our criminal justice system plague our moral core and galvanize us to enact reforms. Professor Henry L. Gates, (15) the Central Park Five, (16) Michael Brown Jr., (17) Eric Garner, (18) Freddie Gray, (19) Alton Sterling, (20) Tamir Rice, (21) Emmet Till, (22) and Anthony Ray Hinton (23) are among the long list of African American males who have suffered racial injustices in our criminal justice system. (24) In the few short months while this Article was readying for publication, Ahmaud Arbery, George Floyd, and Rayshard Brooks were added to the list of those African American men. (25) And the list keeps growing.

As the data and stories of injustice bring to light, this racialized presumption of guilt influences who the police profile as criminal suspects, (26) the manner in which law enforcement engages with criminal suspects and witnesses in the community, (27) the way in which the police interrogate suspects, the charges brought against defendants, (28) the plea bargaining negotiations, and the final sentence. (29) Looking back on U.S. history, this racialized presumption of guilt is anchored in the United States' deep, racially discriminatory roots that built a society, an economy, and a criminal justice system on slavery. (30) Under this discriminatory caste system, enslaved African American males were stereotypically regarded as dangerous, aggressive, animalistic, likely to use weapons, and prone to criminality. (31) This racialized presumption of guilt was reinforced during the 1920s when the criminal justice system, born and evolved from a society that discriminated against African Americans, developed into a more professional enterprise in which full-time police made arrests and prosecutors brought charges. (32) Scholars have observed that creating full-time police and prosecutors reinforced the presumption of guilt towards defendants. (33) The United States further reinforced the racialized presumption of guilt during the 1990s when it supported police racial profiling, unauthorized searches, and pretextual stops to promote its War on Drugs and Violence. (34) To the horror of many, this racialized presumption of guilt remains embedded in our culture, (35) economics, (36) politics, (37) and criminal justice system (38) and continues to be further stoked today. (39)

Legal scholars and criminal law activists have called for a total overhaul of the criminal justice system to put an end to this system of racialized injustice. (40) Although considered a laudable goal by many, (41) such reform takes time, and that delay maintains the status quo. This Article focuses instead on debiasing reforms in the plea-bargaining process as a more immediate and realistic approach to stopping the cycle of racialized justice.

There are three justifications for this choice. First, the proposed reforms target the plea-bargaining process--the primary form of criminal justice decision making (42) and a hub of racialized injustice--to readily yield improved justice outcomes for those African American male defendants whose cases will be plea bargained. Because of the racialized presumption of guilt, African American male defendants who plea bargain in state criminal courts are more likely to be presumed guilty--even when factually innocent. (43) Furthermore, those African American male defendants who are guilty of a crime and opt to plea bargain are often penalized with harsher outcomes because of their race. (44) This must change.

Second, the universe of legal actors that can reform the plea-bargaining process is discretely defined. These actors include defense lawyers, prosecutors, and their respective offices. Unlike other criminal reform ideas that require legislative changes and significant budgetary support, the reforms suggested here just require acceptance by prosecutors and defense attorneys. (45)

Third, prosecutors and defense attorneys, the primary plea-bargaining negotiators, are also the legal actors initially drawn to this practice area to "do justice." This committed group is more likely to be receptive to reforming the plea-bargaining process and deliver more racially neutral justice than apathetic legal actors who accept the status quo. (46)

A threshold issue in developing this proposal for reform is understanding why prosecutors and defense counsel, legal actors committed to enforcing justice, still plea bargain in such a racially biased way. The "why" provides the foundational justification for the proposals recommended later in this Article. Cognitive behavioral scholars educate that our racialized history has also remained embedded in our culture and has become memorialized in an unconscious network of neurons that form our implicit biases about African American males. (47) All Americans have these implicit biases. (48) Thus, even though we may explicitly reject the United States' discriminatory behavior, and it may appall us, we may still internalize the racially discriminatory messages the media and broader culture communicate to us. (49)

Relevant to this Article's point, these implicit biases influence the legal actors in our criminal justice system, including the prosecutors and defense attorneys who are the primary legal actors in plea bargaining. (50) Therefore, although prosecutors and defense attorneys may not be explicitly biased, they are still prone to unconsciously regard African American men as dangerous, aggressive, likely to use weapons, and prone to criminality. (51) Such implicit biases contaminate every aspect of the plea-bargaining process including the evidence relied upon, (52) the severity of the initial charges, (53) and the final sentencing agreement. (54) This implicit bias infects defense attorneys and prosecutors alike, as well as the organizations that employ them. (55)

The plea-bargaining process is particularly susceptible to becoming infected by implicit racial bias. During plea bargaining, the racialized presumption of guilt emerges, thrives, and shapes justice outcomes. Applying the research of implicit bias scholars, we can understand how legal actors' lack of self-awareness about their own racialized biases, (56) the justice system's driving need to use plea bargaining for efficient justice resolutions, (57) and attorneys' broad discretion in the plea bargain process (58) all contribute to make plea bargaining a process that enables implicit biases about African American male defendants.

Anti-racist educators contribute to this discussion by explaining that we will...