Prosecutorial Discretion

Of all the discretionary influences that a prosecutor has within the criminal justice system (discretion to file and dismiss charges and allegations), the use of the plea bargain is both the most common and the most reviled (Walker 1993). Over time, prosecutors have resorted to using the plea bargain as a way to handle an ever-burgeoning case load (Dow 1981; McCoy 1998; National Institute of Justice 1997). Standard reviews of plea bargaining indicate that close to 90% of all felony filings result in a plea bargain conviction (Bessette 1997; Carp and Stidham 1993; Misner 1996; Neubauer 1997). Because of this widespread use and the fact that the essence of a plea bargain means reduced sentences for the defendant, the plea bargain has often been the focal point in discussions of discretionary abuse and leniency in sentencing (Alschuler 1978; Bessette 1997; Morris 1974).

Prosecutorial discretion in plea bargaining has also been target of numerous empirical studies. However, empirically investigating plea bargaining has proven difficult because plea bargaining is usually an informal process and it is difficult to establish quantitatively how this process is accomplished. Because systemic analysis has been hampered by the lack of uniform data reporting (U.S. Sentencing Commission 1991), the existing empirical literature on plea bargaining primarily focuses on practices within a specific jurisdiction.

Scholars have found that in evaluating plea bargaining, the policy decisions of the chief prosecutor must be interpreted in light of his role in the criminal justice system. The prosecutor is at the same time an elected public official, the chief law enforcement official with the power to file criminal charges, and a bureaucrat responsible for the administration of a complex department (Jacoby 1979). Because the prosecutor is shaped and influenced by these roles, the policies that are enacted within that jurisdiction reflect the values as expressed through those roles. Unlike other positions in the criminal justice system, the role of the prosecutor is not a neutral one. Rather, the prosecutor is an advocate of the state to pursue and seek punishment for those individuals who violate the law. As such, the prosecutor typically uses her influence to enact policies that advance this goal.

Influenced by this institutional role, the prosecutor uses plea bargaining as a policy tool to control crime. Prosecutors who enact restrictive plea bargaining practices attempt to reduce crime through the elimination of more lenient sentences for criminals (Worden 1990). When plea bargaining is allowed, research has shown that is tied to legal variables which are directly related to either the criminal conduct or the criminality of the offender. Offenders who commit serious crimes as evaluated by the severity of the charge and/or harm to the defendant are less likely to receive prosecutorial leniency than those who commit less serious offenses. Similarly, during the negotiation process, prosecutors closely evaluate the criminality of the offender, as defined by his prior criminal record, measured either in number of felony convictions or number of previous arrests. Other offender-related variables include age of the defendant, as a measurement of criminality over time, and drug use (Holmes, Daudistel, and Farrell 1987; Jones 1977; McDonald, Rossman, and Cramer 1979; Miller 1994; Neubauer 1974).

Other studies have explored the impact of social status-or extra-legal variables-on the plea bargaining decision, but to date, the results are inconclusive. One group of studies seems to reveal that social status variables such as race/ethnicity, class, and gender have a significant, but negative, impact on the prosecutor�s decision to plea bargain. Offenders who are black and/or poor often face harsher treatment than those defendants who are white and/or wealthy (Zatz 1987). Another study found that while sociological factors were significantly linked to how they were handled during the plea negotiation process, minority defendants were treated more favorably than white offenders (Holmes, Daudistel, and Farrell 1987). Determinate sentencing schemes have tried to eliminate the influence of sociological factors in the sentencing process and follow-up reports have indicated some measure of success (Miethe 1987).

Prosecutorial discretion has also been linked to dispositional factors, or factors related to the probable outcome of the case. Not surprisingly, prosecutors who fear that the defendant will be acquitted at trial will press for a negotiated plea beforehand. Prosecutors are more likely to press for a plea bargain if they fear losing the case in a jury trial, therefore, the strength of the case as measured by the quality of evidence has been found to be a significant predictor in the plea process (Neubauer 1974).

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