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The Prejudicial Impact of Plea Bargaining on Minorities

Below is an interesting article about the prejudicial impact that plea bargaining may have upon minorities. See also, Professor Simon's blog at

and this article:

What a bargain: the widespread practice of plea bargaining has increased repercussions for people of color who end up literally signing away their lives on the dotted line

Colorlines Magazine: Race, Action, Culture, Fall, 2004
by Rolanda J. West

In the United States, more than 90 percent of all cases in the justice system are settled by plea bargaining rather than exercising the right to trial. The rate of felony convictions of nonviolent crimes in communities of color is over-whelming: African Americans constitute 13 percent of all drug users, yet they represent 35 percent of arrests, 55 percent of convictions and 74 percent of prison sentences, according to a 2000 study by the Sentencing Project.

These two factors mean that the widespread practice of plea bargaining--where prosecutors overcharge for a crime and defense attorneys usually urge defendants to cop a plea for a lighter sentence--has increased repercussions for people of color who end up literally signing away their lives on the dotted line. Defendants are seldom informed about the underlying effects of pleading to a felony--such as losing their right to vote, access to federal student aid, and if they are noncitizens, being deported.

One in four black men have permanently lost the right to vote in seven states. All told, 14 states restrict criminal offenders from voting, and more than 1.4 million black men nationwide cannot vote, according to Human Rights Watch. Some observers argue that if felons had been able to vote in Florida, with its more than 600,000 convicted felons, Bush would have lost the 2000 election.

The racial disproportion in sentencing prompted the Constitutional Rights Foundation to call for a ban on plea-bargaining, in a recent report commemorating the 50th anniversary of Brown v. Board. The report cited a U.S. Sentencing Commission study in 1990 finding that 25 percent of whites get their sentences reduced through bargaining, compared to 18 percent of blacks and 12 percent of Latinos.

In 1991 the San Jose Mercury News conducted a massive study of 700,000 California legal cases over a 10-year period. The paper reported that "a third of the white adults who were arrested, but had no prior record, were able to get felony charges against them reduced. Only a quarter of the African-Americans and Latinos with no priors were as successful in plea bargaining."

June Terpstra, a criminal justice scholar at Loyola University Chicago, emphasizes that drug laws play a critical role in imprisoning the majority of black convicts. Although African Americans only make up 12 percent of the population, 44 percent are incarcerated, according to the NAACP Legal Defense Fund. In some states, African American men were convicted of drug charges up to 27 times more often than their white counterparts.

The Inherent Unfairness in DUI Laws

A very interesting article in the National Association of Criminal Defense Lawyers magazine is the article by by attorneys Eric Sills and Peter Gerstenzang. It concludes that under the application and interpretation of current laws, that DUI offenders are interpreted as having fewer rights that other criminal offenders.

A True Double Standard: A Defense Perspective on the Inherent Unfairness in the Administration of the Impaired Driver Laws By Eric H. Sills; Peter Gerstenzang

Due to the intense pressure placed upon legislators, prosecutors and judges to wage war on impaired drivers — by interest groups such as Mothers Against Drunk Driving — it is rare that a year goes by without an increase in the penalties imposed for driving under the influence of alcohol or drugs (“DUI”). This pressure, combined with the lack of any organized lobbying on behalf of the drinking or drug-using driver, has led to a true double standard in which the criminal justice system has created two classes of criminals: (1) impaired drivers, and (2) all other criminals.

The inherent unfairness in the administration of the DUI laws pervades virtually every aspect of a DUI case, from the initial stop of the defendant’s vehicle through the administration of the chemical test. In addition, the courts routinely find that the use of so-called “civil penalties” to exact extra punishment on DUI offenders (e.g., driver’s license suspensions pending prosecution, chemical test refusal revocations, vehicle seizures or forfeitures) do not violate either the Double Jeopardy Clause or the Due Process Clause.

This article will demonstrate that the Constitution has been interpreted to provide less protection where the defendant is accused of DUI than it does where the defendant is accused of virtually any other crime, regardless of how serious or despicable.