MOST CRIMINAL CASES never make it to trial. Nationally, around 90 to 95 percent of cases are resolved through a guilty plea, where the prosecutor and defendant reach a negotiated agreement. While plea deals must be approved by a judge, the agreement is negotiated behind closed doors. That leaves researchers and legal practitioners with little data to understand when and how plea negotiations are conducted, and whether certain defendants are treated differently than others, based on geography, race, class, or other factors.
Berkshire District Attorney Andrea Harrington is one of two district attorneys nationwide to participate in a study that aims to open up the “black box” of plea bargaining. Harrington, a progressive Democrat, announced Thursday that she has committed her office to participating in the Plea Tracker project run by the Wilson Center for Science and Justice at Duke Law School. After any plea deal is reached, prosecutors will fill out an online form providing specific information about the factors that went into the deal. Researchers say their goal is to understand and hopefully address any disparities in how plea deals are used to ensure the system is just.
“Despite plea bargaining being such a major part of the legal system, we know so little about what really happens in the process, how plea negotiations differ between similar cases, and ultimately whether the promise of a fair and just system is being fulfilled,” said Yvette Garcia Missri, executive director of the Wilson Center, at a virtual press conference announcing the project. The Wilson Center uses research to advance criminal justice reform.
The project started in April, when Wilson Center researchers developed tracking tools tailored to Harrington’s office and the office of Durham District Attorney Satana Deberry, a progressive DA in North Carolina. The center is working on creating a tool to add Utah County District Attorney David Leavitt, a Republican.
Once a plea agreement is finalized, prosecutors in these offices fill out an online form with basic case information but also the factors they considered at each stage in their plea recommendations. These include things like victim and defendant demographics, assessment of danger risks, access to mental health and substance use treatment, and the victim’s desired outcome. Most of this data has never before been collected.
Harrington said she agreed to participate to shed light on the challenges she faces finding alternatives to incarceration in Western Massachusetts. She believes there is a need to offer more trauma services and substance use treatment, and the lack of availability of those services traps people in a cycle of policing and incarceration. She said until now, a lack of data has stymied her ability to obtain federal funding for alternative programs. She also hopes to be able to better examine racial disparities in the justice system, and look at ways to empower victims during plea negotiations.
“Opening my office for scrutiny in the name of digging deeper into the differences between who our system affords mercy to and who it does not is leading by example,” Harrington said. “We welcome the results of the work, understanding it will likely point to necessary reforms from my office and prosecutors.”
Wilson Center researcher Adele Quigley-McBride, who has been working with Harrington, said the data is already helping Harrington’s office track its policies. For example, Harrington says she values victim engagement. The first 75 days of data collection identified 41 plea deals in cases involving a victim. The data found that prosecutors communicated with the victim in every case, and in a majority of cases, they reported having a lot of communication. In five cases, the victims chose not to participate in the process. Another data point that was collected showed that just under half of the pleas involved rehabilitation or treatment as part of probation, primarily driver-related alcohol education.
The data that is collected will belong to the district attorneys and the researchers, although a report on the data will be made public after a year. Quigley-McBride said the center is working on developing a dashboard of aggregate data that the district attorneys could use to respond to requests from journalists and researchers, even after the year-long study ends.
Deberry, the North Carolina DA, said one of her goals is to track racial disparities, based on her understanding that Black and Latinx individuals get pulled into the justice system and treated more harshly more frequently than Whites. She also wants to understand the so-called “trial tax,” the increased penalty defendants might pay if they choose a trial instead of a plea deal, in order to ensure people are not feeling coerced into accepting plea agreements. “Understanding disparities in our office is a first and important step toward correcting them,” Deberry said.
Ron Wright, a criminal law professor at Wake Forest Law who is not affiliated with the Wilson Center but spoke at the press conference, said this type of data has never previously been available. Today, while individual offices have case management systems, there is generally no way to get aggregate data. He said more complete information could be invaluable for journalists trying to understand trends and researchers seeking a fuller understanding of how pleas are negotiated.
Wright compared plea bargains today to a kitchen – you can see the groceries going in and the dishes coming out, but nothing that happens while the food is being made. “You don’t get a systematic view of the actual negotiation processes across a range of cases,” Wright said.