Rutgers University Law Review
In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that prosecutors, even in offices that adopt blind charging and plea bargaining policies, would remain blind to who the individual defendant is in all cases. Therefore, the individual fix is to train prosecutors on empathy. Prosecutors' offices should expand and improve training and programs on empathy to change how prosecutors view defendants. People tend to have empathy for, and in the criminal context give the benefit of the doubt to, those who are "more like them" - including being the same race and socio-economic group. Empathy for others is a skill that can be taught, like trial skills, negotiation, or writing. Prosecutors' offices need to include empathy skills as an integral part of their overall training. Improved empathy skills would help prosecutors to stop looking at defendants as simply "criminals" - a label that is often racially-based. Instead, more prosecutors could learn to see defendants, in the words of Bryan Stevenson, as "more than the worst thing" they have ever done.
Rutgers Law School
Bargaining Without Bias,
Rutgers U.L. Rev.
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