We want to engage in the fantasy that there is equal justice under law. But as demonstrated by criminologist Nicole Gonzalez Van Cleve in her book “Crook County: Racism and Injustice in America’s Largest Criminal Court,” racism exists in the criminal system. Assistant Professor Van Cleve presents a searing picture of systemic and deeply entrenched racism in the criminal system, even among defense attorneys not to mention judges and prosecutors.
I have in prior posts here tried to explain how racism is destroying the criminal system. I wrote about it extensively in a brief challenging the constitutionality of felon disenfranchisement which has its origins in the southern slave codes. I have written here how some people make the incredible assertion that racism no longer exists. I have written here how Donald Trump has no understanding of how racism creates mass incarceration and many other problems in the criminal system. In fact, I have even explained here how we are racist in ways we do not even realize.
Prosecutors have virtually unchecked power in the plea bargain process. It’s the power to take away freedom, destroy livelihoods, and tear families apart. Ultimately, it’s the power to devastate low-income minority communities already suffering from aggressive and discriminatory law enforcement tactics. For instance, in the film “Milwaukee 53206,” Milwaukee’s ZIP code 53206 is examined since it has the national spot light for having the highest incarceration rate in the country. The film illuminates the story of people from across the United States who live with the daily effects of unfair and excessively racially-biased jail sentences have on individuals and families.
Now comes a new study which shows how racism creeps into the plea bargaining process. Now a new study from Carlos Berdejo of Loyola Law School demonstrates for the first time that there are significant racial disparities in the plea deals that white and black people receive on misdemeanor charges—with black people facing more severe punishment.
Berdejo 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 more than 25 percent more likely to have charges reduced than black people who also had no criminal history.
This suggests, as Berdejo concludes in his report, that prosecutors use race to judge whether a person is likely to recidivate when deciding what plea to offer.
Prior studies have found racial disparities in the plea bargaining process. The Berdejo study differs, however, in that it analyzes a detailed statewide data set of the entire life of criminal cases, from charging to sentencing, making it more reliable and expansive.
If there are racial disparities in pleas in misdemeanor cases that lead to worse punishment of black people, it means a significant proportion of our criminal justice system is meting out punishment in a racially-biased manner.