Plea Bargain Illustration

Prosecutors help shed light on plea agreements in Wilson Center project 

In a unique partnership with the Wilson Center for Science and Justice at Duke Law, two district attorney’s offices are providing unprecedented access and information about the little-understood world of plea agreements in criminal cases.

Durham County (N.C.) District Attorney Satana Deberry ’94 and Berkshire County (Mass.) District Attorney Andrea Harrington partnered with researchers at the Wilson Center to design and pilot a project called “Plea Tracker” that is generating comprehensive data on the factors that drive case outcomes. The Plea Tracker seeks to measure outcomes, increase transparency, and build public trust throughout communities served by the Durham and Berkshire district attorneys’ offices, as well as serve as a national model.

Researchers began collecting data in Berkshire and Durham counties in April, and in July the Wilson Center announced a third partnership with Utah County Attorney David O. Leavitt in Provo, Utah.

Despite plea agreements accounting for approximately 90 to 95% of all criminal case dispositions, what actually happens during the negotiation process has historically not been studied. The Plea Tracker’s initial yearlong study will result in aggregated data to uncover patterns and trends in how prosecutors use their discretion. The offices will use this data to inform future policies and decision-making.

The prosecutors taking part complete an online form once a case has been negotiated and the plea agreement is finalized. The online form has been tailored to each DA’s office — the particular jurisdiction, interests, resources, and practices used by their staff — to maximize the benefits of participation for the office itself and the independent research team.

In addition to basic case information, prosecutors in each office report on the factors they consider at each stage in their plea recommendations. They document factors not previously measured, including victim and defendant demographics, assessment of danger risks, access to mental health and substance use treatment, and the victim’s desired outcome.

“The Plea Tracker gives so much insight into processes that are otherwise completely unobservable,” said Will Crozier, the Wilson Center’s research director. “This project is an attempt to really see how the justice system works. The lessons learned from this project will undoubtedly have an impact on our understanding of how justice is negotiated, and I think will result in a better understanding of how progressive prosecution can improve the criminal justice system.”

Prosecutors wield enormous discretion and power by determining which charges to prosecute, which charges to reduce, and which charges to dismiss, yet few prosecuting offices have adopted empirical approaches to assess the impact of negotiated outcomes. In part because of unchecked plea practices, U.S. incarceration rates have exploded in recent decades without evidence to demonstrate those policies make communities safer. The Plea Tracker serves as a check on prosecutors’ practices by identifying potential racial disparities, examining consistency across similar cases, and encouraging individualized case outcomes tailored to the needs of defendants, victims, and the community.

“We cannot address the deep-seated racial disparities in our criminal legal system without scrutinizing how plea offers are formed and negotiated,” said Deberry. “As prosecutors, the plea process is our biggest opportunity to use our discretion to create a more equitable system. The Plea Tracker helps our office to ensure that achieving fairness and equity — rather than pursuing the highest possible charges and sanctions regardless of the costs to our community — are the starting point for resolving each case.”

Said Harrington: “My approach during these rightfully turbulent times is to lead by example. As a prosecuting office, that means taking ownership of our institution’s historic role in perpetuating systems of oppression, the vestiges of which persist to this day. Opening my office for scrutiny in the name of digging deeper into the differences between who our justice system affords mercy and who it does not is leading by example.”

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Magazine Cover, Fall 2021

Fall 2021
Volume 40 No. 2