Nearly all criminal convictions arise from plea bargains, giving prosecutors disproportionate power.

Evidence

Approximately 95–97 percent of convictions are obtained via plea bargaining (Bureau of Justice Statistics, 2015; Durose & Langan, 2007; Pastore & Maguire, 2003; U.S. Department of Justice Executive Office for United States Attorneys, 2013): almost all criminal cases resolve during the interstice between arrest and trial, the period in which prosecutors wield significant power. Thus, prosecutors are generally considered the most influential actors in the U.S. CJS (Gilbert & Johnson, 1996; Kutateladze, Lynn, & Liang, 2012; Miller, 2004; Stith, 2008). A 2012 study found that prosecutors are less likely to charge White suspects than Black suspects (Research Working Group of the Task Force on Race and the Criminal Justice System, 2012). Similarly, Radelet and Pierce (1985) reviewed prosecutorial decision-making in over 1,000 Florida homicide cases and found a combination of harsher treatment of Black defendants and more lenient treatment of White defendants. As Justice Powell acknowledged in McCleskey v. Kemp (1987), “[T]he power to be lenient is the power to discriminate” (481 U.S. 279, 312). — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 1212

Categorization

• DEEPTHINKING: Powell’s line that the power to be lenient is the power to discriminate reframes prosecutorial discretion as itself the mechanism of racial bias — the whole chapter’s hinge.