Greenberg Presents at AALS ADR Conference

On October 4, Professor Elayne E. Greenberg presented her paper “Erasing Race in Plea Bargaining” at the 13th Annual AALS ADR Section Works-in-Progress Conference hosted by the UNLVBoyd School of Law and the Saltman Center for Conflict Resolution.   

Here is the Abstract:


This paper prescribes debiasing reforms for the plea bargaining process to help mitigate the racialized presumption of guilt that deprives African American male defendants of their justice rights.

Despite our criminal justice system’s guarantees of “justice for all” and “innocent until proven guilty,”  African American male defendants know too well that these guarantees don’t apply to them. Even though this “presumption of innocence” is a legal right and a human right, the data shows that African American male defendants suffer a racialized presumption of guilt in every part of the criminal system, including in the plea bargaining process. Today, upwards of 97% of criminal cases are resolved by plea bargaining. However, because of the racialized presumption of guilt against African American male defendants,  African American male defendants who plea bargain in state criminal courts are more likely to be presumed guilty, even when factually innocent. Furthermore, those African American male defendants who are guilty of a crime and opt to plea bargain, are often penalized with harsher outcomes because of their race. The status quo must change.

This racialized presumption of guilt is anchored in our country’s deep, racially discriminatory roots that built a society, an economy and a criminal justice system on slavery. Even though we may explicitly reject and be appalled by our country’s historical discriminatory conduct, we may still internalize  as implicit biases the racially discriminatory messages that are communicated in the media and broader culture. These racially implicit biases also influence the prosecutors and defense attorneys who are the primary legal actors in plea bargaining. Thus, although prosecutors and defense attorneys many not be explicitly biased, they are still prone to unconsciously regard African American men as dangerous, aggressive, likely to use weapons and prone to criminality. Such implicit bias contaminates every aspect of the plea bargaining process from the evidence relied upon, the severity of the initial charges and the final sentencing agreement. This implicit bias infects defendants and prosecutors alike as well as the justice organizations that employ them.

This paper expands the scholarship about plea bargaining by “naming the elephant in the room” and tackling how to mitigate the implicit racial bias in plea bargaining. In doing so, the author integrates the work of cognitive behavioral psychologists, anti-racism educators, dispute system designers, negotiation scholars and criminal justice reformers and recommends organizational and individual debiasing strategies to erase race from plea bargaining. Combined, the recommendations will: provide legal actors involved in plea bargaining with the skills to manage their racialized implicit biases; establish a more deliberative plea bargaining process in which there is a sharing of objective information to minimize the reactive decision making that evokes implicit racial bias;  and  help implement procedural safeguards to check the prosecutorial discretion that may be applied in a racialized way. District attorneys’ offices, public defenders’ organizations and the prosecutors and defense attorneys that work within these organizations are the primary legal actors who  not only control plea bargaining, but also have the power to enact these prescribed reforms.

The ultimate goal of the proposed reforms is to ensure that African American male defendants reclaim their right to be “presumed innocent until proven guilty.”

One Comment to “Greenberg Presents at AALS ADR Conference”

  1. It is! Thanks!

    Sent from my iPhone

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