I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.” It discusses a study out of Loyola Law school that
analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.
The authors did not consider the obvious: that relative poverty might cause this outcome. In California, people of color are less wealthy. If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits. They wealthy can bail themselves out and fight the case, eventually securing a better deal. If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal. There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.
But the authors, without an explanation, go right to “prosecutors are racist” as an explanation. That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.
Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory. Is it bail that’s causing this? Or racist prosecutors? The authors can’t decide. They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.” Not criminals; prosecutors are to blame. Who thinks like this? More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.” What?
I just hate-read this again before finishing up and noticed this was written by public defenders. Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments. Not all public defenders are quick to accuse the other side of racism. But it seems like these two are a great example of everything that’s wrong with the defense bar.
DA in CA 