While various criminal law law theories and issues are increasingly subjected to data, critical wrinkles remain largely "hidden in plain sight." One key issue involves how prosecutors engage in--and deploy--prosecutorial discretion. A deeper and more granular understanding of how prosecutorial discretion cashes out when it comes to plea bargaining remains both pressing and enormously consequential.
Unsurprisingly, data limitations pose one critical barrier to studies on how plea bargaining actually works on the ground. One recent and helpful contribution, Plea Bargaining in Homicide Cases: An Empirical Exploration in One State, involves data on one crime type (homicide), from one state (Wisconsin), between 2005-2018.
Under Wisconsin law, defendants alleged to have committed the most serious homicides can be charged with a Class A felony. Homicide defendants charged with a "lesser" crime, a Class B felony, confront a comparatively lighter sentence. As the authors, Michael O’Hear (Marquette) & Darren Wheelock (Marquette—social & cultural sciences), note, "one common plea deal is for the prosecutor to reduce the charge from a Class A to a Class B homicide in return for the defendant’s surrender of his or her right to a trial." And their paper explores "which Class A defendants get this big break [a Class B felony charge] and why." To do so, the authors examine a set of a 293 cases where the defendant was initially charged with a Class A homicide and then pled guilty. In 198 of these cases, the defendant was permitted to plead guilty to a reduced Class B charge. In the remaining 95 cases, the defendant confronted the original Class A charge (despite having plead out).
Their findings include some possible surprises. One includes the apparent lack of statistical salience of defendant or victim race. Factors that did achieve statistical significance, however, include whether a defendant was defended by a court-appointed lawyer. The paper's abstract follows.
“Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed. In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence. However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all. In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome). We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.”
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