WHEN A PLEA IS NO BARGAIN AT ALL: COMPARING SENTENCING OUTCOMES FOR MASSACHUSETTS DEFENDANTS IN NON-SEXUAL AND SEXUAL CRIMES.

• Author: Frazier, Annabelle

In the 1980s and early 1990s, a rapid increase in crime rates, particularly for violent offenses such as murder, manslaughter, robbery, aggravated assault, and rape, (1) prompted a public outcry for harsher punishment of offenders. (2) The belief that "tough on crime" policies would reduce violent crime produced several legal changes (e.g., the "three-strikes" law and the increase in minimum sentencing mandates) that have increased the proportion of the population behind bars without a proportional reduction in crime. (3) In fact, research has shown that incarceration has a minimal impact on the prevention of violent crime (i.e., an "incapacitation" effect), even in "punitive" states, in which those convicted are far more likely to be incarcerated, facing longer custodial sentences, or even the death penalty. (4) Some analyses have indicated that each prison-year served prevents 0.30 violent crimes per individual in custody, and the benefits of incapacitation have dropped even further in recent years. (5) Approximately 95% of felony convictions are obtained through guilty pleas. (6) The practice of plea bargaining, protected and reaffirmed by several Supreme Court decisions-most notably Brady [upsilon]. United States, (7) Lafler v. Cooper, (6) and Missouri v. Frye (9)--enables prosecutors to offer a sentencing "discount" to defendants in exchange for a waiver of their right to trial. (10) In violent crime prosecutions, plea bargaining is often seen as evidence of a slipshod attitude toward punishing criminals. (11) While some perceive plea-bargaining as a lax method of prosecuting criminals, others have raised concerns regarding the potential coercion of criminal defendants by prosecutors with unchecked discretion, and whether plea bargains truly produce shorter sentences for criminal defendants. (12)

1. PLEA BARGAINING AND SEX CRIME PROSECUTION

   Prosecution of sex crimes remains a slow process, and successful prosecution rates vary widely. (13) Past researchers have determined that in most cases, prosecution takes an average of sixty days to file charges or proceed to indictment, and total case resolution typically takes over six months. (14) Even when sex crimes are resolved through plea-bargaining, cases often take up to a year to reach disposition. (15) Research indicates that in cases of sexual crimes against child victims, rates vary widely, with 46%-82% of cases disposed through guilty pleas. (16)

   Prison sentences produced by sex-crime prosecutions are among the least effective measures in preventing reoffending, as compared to treatment and community supervision methods. (17) Some authors further assert that imposition of a prison sentence is the sole significant predictor of chronic sexual offending. (18) Furthermore, increasing the inmate population by one-hundred male offenders correlated with a statewide reduction of two sex crimes per year. (19) Despite this, emotionally-fueled public opinion continues to favor long prison sentences and few re-entry opportunities for sex offenders. (20) Providing reduced sentences or plea offers are rarely in line with public opinion when sex crimes are being prosecuted; rare exceptions include cases involving older, first-time defendants who displayed remorse, (21) and cases where the convicted offender compensated their victim. (22) Judges and prosecutors often echo broader public perceptions of sex offenders as uniquely dangerous to the public or impervious to treatment. (23) Nonetheless, public mistrust in the legal system has historically resulted in a widespread belief that the system is too lenient with sex-crime defendants. (24)

   Like other types of defendants, those accused of sex crimes can often negotiate a shorter custodial sentence, a less restrictive custodial placement, as well as shorter or more favorable probation terms in exchange for a guilty plea. In addition, sex-crime defendants can engage in two types of plea-bargaining: (a) plead guilty to a less severe crime than initially charged; and/or (b) plead guilty to a related, non-sexual crime. (25) The emergence of sex-offender registration policies has complicated the process of plea-bargaining by making the latter type even more appealing. Letourneau et al. contrasted plea-bargaining rates in over 19,000 cases involving juvenile male defendants charged with sex crimes before registration policies were in place (1990-1994), during the onset of registration policies (1995-1998), and during the onset of revised policies that included publicly available internet registries (1999-2004). (26) Results demonstrated that the implementation of sex-offender registration policies coincided with an increase in rates of plea bargaining. Letourneau et al. in fact, argued that prosecutors were hesitant to subject juvenile defendants to sex offender registration, and therefore attempted to negotiate plea agreements to related, non-sexual crimes with these defendants. (27) The shame associated with being labeled a sex offender, along with residential, occupational, and practical restrictions imposed on registered sex offenders, are likely significant factors in defendants' plea-bargaining decisions. (28) In some instances, plea bargaining can serve as a protective tool, especially for young offenders, enabling individuals to escape the label of sexual offender and the legal/societal treatment that comes with that label. (29)

   Defendants accused of sex crimes are often far more motivated to avoid being labeled as a "sex offender" than they are to avoid long prison sentences, GPS monitoring, mandated treatment or extended probation supervision. (30) The threat of being labeled a "sex offender" and the stigma associated with that label increases the vulnerability of individuals accused of, or indicted for sex crimes, to coercion by law enforcement as well as prosecutors. This increased vulnerability could significantly increase their willingness to accept a plea offer regardless of factual guilt, or the favorability of the actual terms of the offer. (31) In addition, pretrial confinement (resulting from denied bail) can have a further coercive impact on acceptance of a plea bargain. (32) Consequently, the increased vulnerability of those accused of sexual crimes, along with strong negative opinions of plea bargaining with sexual offenders, produce complex relationships that have received relatively little research attention. (33) Specifically, while plea-bargain agreements are often believed to include sentence "discounts" for defendants, this assumption may not hold true in sex-crime cases. (34) Plea agreements produced by sex-crime prosecution may, in fact, represent a unique sub-group in plea-bargaining literature, with different predictors as well as diverging outcomes for defendants. (35)

   Research in the field of plea-bargaining with sex offenders remains limited, but it is expanding. Current research findings suggest that understanding the full impact of plea-bargaining involves a balance between securing convictions efficiently and minimizing risks to society such that plea agreements are most appropriate when the offender's risk to the community is low. (36) Examining instances in which plea agreements occur and how they differ across crime types is critical to improving our understanding of the implications plea practices pose for the accused, the justice system, and the public.

2. THE CURRENT PROJECT

   Given the concerns regarding plea bargaining and its impact on reoffending, the current project was developed to disentangle the complex relationships among the accused, the legal system, and the community at-large, particularly in sex-crime cases. Our goal was to examine current practices in the prosecution and sentencing of sex offenders to better understand the outcomes produced when balancing competing legal demands in individual cases. We were interested in evaluating two competing hypotheses: 1) that, perhaps due to public opinion and perceptions of their dangerousness, defendants in sex-crime cases receive less favorable plea-bargaining outcomes than defendants in otherwise comparable violent, but nonsexual crimes (e.g., non-sexual assault versus sexual assault); 2) or, alternatively, that plea-bargaining outcomes for sex-crime cases are more favorable, perhaps due to difficulties in the prosecution of these cases. We were further interested in assessing whether sex-crime defendants received fewer "discounts" in plea agreements, and if so, whether any individual case characteristics affected the favorability of the plea agreement. Our research was developed to answer the following questions:

   * Research Question 1: Which factors account for variation in plea-bargain outcomes? Are these factors similar or do they differ between sexual offense (SO) and non-sexual offense (NSO) groups?

   * Research Question 2: Do SO defendants differ from NSO defendants in plea-bargaining outcomes?

3. METHOD

   1. Participants

      Our data included public records for cases in which indictment was obtained from January 1 to December 31, 2015, in Suffolk, Essex, and Hampden county Massachusetts Superior Court districts. The data was retrieved by the research team from the www.masscourts.org public-records database. We elected to use Massachusetts because of the state's relatively low punitiveness scores, which measured the frequency of custodial sentences, along with duration of these sentences (37) coupled with the absence of mandatory sentencing laws for a wide variety of violent crimes (38) which allow plea-bargaining to occur with higher frequency. (39) The counties were selected for their high violent-crime rates (relative to other counties in the state), ranging from 910 to 370 incidents per 100,000 residents (United States Department of Justice, 2014). (40)

      Indictment inclusion criteria in the present study were charges that involved violence. This criterion resulted in the inclusion of 791 cases in the present...