Offer Sheets Prevent Racism

The vast majority of crimes committed in California are misdemeanors, as in other states. Misdemeanors are punished by a term in county jail, but probation is much much more likely. Felonies, by contrast, are punished by state prison, although probation is sometimes available as well.

Prosecutors in misdemeanor courtrooms may have over 100 cases on calendar in a single day. People who missed their previous court dates may simply show up on any given day, further increasing the number. And misdemeanants may also be arrested on warrants and brought to court. These in custody defendants may show up at any time during the court day, and their cases are often called without a prosecutor reviewing the file at all. The point is, there’s a lot of work in a misdemeanor courtroom.

Most cases are resolved by plea bargain. Off the top of my head, I believe the number is something like 95%. For a plea bargain to happen, the prosecutor must make an offer to resolve the case to a defense lawyer. The defense lawyer is almost always a public defender. In other words, the same prosecutor and public defender bargain over hundreds of cases a week.

In this situation, many prosecutors use offer guidelines. There are lots of good reasons. First, this helps prosecutors avoid having to reinvent the wheel every time they see the same crime with a similarly-situated defendant. For example, many people with no record get arrested for driving with a suspended drivers license. It makes sense to have a standard offer for people in this situation. This offer is written in the guidelines. Second, this ensures that the punishment received for a crime is uniform in a community, and doesn’t depend on the personality of the prosecutor and the defense lawyer. Punishment should fit the crime. It should not be more severe or more lenient depending on the courtroom actors. Third, offer guidelines encourage efficiency. A defense lawyer can meet with his client and tell them what to expect without even talking to the prosecutor, much less having a protracted negotiation.

There is one final benefit to offer guidelines. They are color-blind. Offer guidelines are a protection against implicit bias on the part of the prosecutor, defense lawyer, or judge. They don’t cure implicit bias, but they are a powerful tool for those who want to evenhandedly enforce the law.

Since most prosecutors’ offices use offer sheets, and since they are colorblind, it is hard to argue that prosecutorial discretion is being applied in a racially discriminatory way. After all, the vast majority of crimes are misdemeanors, and the punishment for those crimes is right there in the guidelines. Everybody gets the same punishment for a second-time DUI, for example, regardless of race, age, sex, or anything else. Low term, mid term, and high term guidelines for felonies are the same sort of safeguard. Do these protections make it impossible for bad people to discriminate? No. But they are strong evidence that there is no “systemic racism” lurking in the field of criminal justice.

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