By Brandon L. Garrett and Gregory Mitchell

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions. Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone. These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

Michigan Law Review Volume 121 Issue 5 2023

By Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-McBride & Jennifer Teitcher

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void. In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We collected systematic data from two prosecutors’ offices for one year. The Article describes how the data-collection methodology was designed, piloted, and implemented, as well as the insights that have been generated. Our system can be readily adapted to other offices and jurisdictions. We conclude by discussing how documenting the plea-bargaining process can affect prosecution practices, defense lawyering, judicial oversight, and public policy, its constitutional and ethical implications, and its broader implications for democratic legitimacy. An open-prosecution approach is feasible and, for the first time in the United States, it is in operation.

75 STAN. L.REV. 1365 (2023)

By Ram Subramanian, Leon Digard, Melvin Washington II, and Stephanie Sorage 

There are concerns about plea bargaining’s coercive nature, its role in encouraging the forfeiture of procedural protections, and its role in fueling mass incarceration. In order to provide an accessible summary of existing research, the Vera Institute of Justice, with support from the Safety and Justice Challenge, examined the small but growing body of empirical studies that has developed around plea bargaining. The result is a mix of complicated, nuanced, and sometimes contradictory research findings.

New York: Vera Institute of Justice, 2020. 72p.

By The American Bar Association. Criminal Justice Section and Thea Johnson

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States.1 Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.2 For this reason, a critical examination of the modern plea system is necessary and important. This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices. Even within the same courthouse, informal practices may differ between courtrooms and attorneys. Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions. The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness. There are many purported benefits of plea bargaining in the current criminal justice system. Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. ..

Chicago:: ABA, 2023. 40p.

By Andreea Matei, Lily Robin, Kelly Roberts Freeman, and Leigh Courtney

As we have come to reckon with our nation's overreliance on carceral punishment and the mass incarceration of people of color, particularly Black people, experts are turning to a key system point that is the primary method for resolving most criminal cases: plea bargaining. Plea bargaining involves negotiation between a prosecutor and, often, a defense provider on behalf of their client. Prosecutors hold a lot of discretion over how to proceed regarding plea bargains, including whether to offer a plea agreement, when to do so, and what they wish to offer. Despite the wide use of plea bargaining, little is known about the practice, largely because it happens outside of public view and little is documented by the key actors involved—prosecutors.

In this report, we discuss findings from our exploratory single-site study, in which we used qualitative and quantitative data to answer research questions of interest. Our activities included a policy review; analysis of administrative data from 2018 to 2021; interviews with 11 Philadelphia ADAs, 9 defense providers, and 5 people who accepted pleas; a case file review of 115 cases; and a survey of 65 ADAs. Because prosecutorial discretion in plea bargaining is not well documented in data, the best way to learn about discretion is by speaking with prosecutors; thus, this report focuses primarily on our qualitative findings. We organized our findings by three main topics: policies and goals of plea bargaining, trends in plea offers and outcomes, and decision-making and perceptions of key actors. We end the report with a discussion of policy implications.

Washington, DC: Urban Institute, 2022. 76p.

By  Don Stemen, Beth M. Huebner, Marisa Omori, Elizabeth Webster, Alessandra Early, and Luis Torres

Although guilty pleas are the modal method for criminal case resolution in the US, relatively little attention has been paid to the plea negotiation process. Research suggests that prosecutors drive plea decision-making; however, the decision process is largely hidden and informal. Consequently, little is known about the role that prosecutors and other criminal justice actors play across the process, and even less is known about how these mechanisms have changed over time, particularly during the COVID-19 pandemic. Unpacking these plea negotiation decisions are especially key to understanding racial and ethnic disparities in criminal case processing.

Funded as part of the John D. and Catherine T. MacArthur Foundation's Safety and Justice Challenge Research Consortium, the current study considers guilty plea negotiation processes and outcomes in Milwaukee County, Wisconsin, and St. Louis County, Missouri. Both offices are currently led by reform-oriented attorneys, are are medium-sized offices serving urban and suburban jurisdictions. Over the long tenure of elected District Attorney John Chisholm in Milwaukee, the office has implemented innovative prosecution models such as community prosecution units and diversion programs. In St Louis, recently elected District Attorney Wesley Bell is the first Black person to hold the office, and he ran on a platform of ensuring equity in the system and reducing mass incarceration. The goal of the study is to explore how prosecutors and other court actors approach and make decisions surrounding the plea negotiation process, in addition to investigating the factors that affect plea outcomes. The data used in this report include narratives from interviews with and surveys of local stakeholders including prosecutors, public defenders, judges, private attorneys, and system-involved persons. The report also centers on administrative data collected through agencies' case management systems for criminal cases filed in Milwaukee and St. Louis Counties through 2020.

Safety and Justice Challenge, 2022. 49p.