Evaluating performances pretrial: The role of defendant performances in prosecutors’ plea bargaining decisions

Abstract

Research Summary

Existing research on plea bargaining focuses primarily on how fixed case and defendant characteristics, such as the strength of the evidence or the race of the accused, impact plea offers. Less is known about how prosecutors consider a defendant's behavior while their case is pending throughout the plea bargaining process. Drawing on an ethnographic study in two midwestern District Attorney's (DA) offices, this paper reveals how prosecutors evaluate defendants’ performances pretrial as they decide their plea offers. First, I identify four types of pretrial performances that prosecutors consider: abiding by the rules of the court, addressing the harm of the crime, engaging with social services, and demonstrating positive attitude and demeanor. Then, I demonstrate how the process through which performances shape plea offers is dynamic and interactional, as defense attorneys develop assumptions about which performances prosecutors consider and support their clients in meeting those expectations.

Policy Implications

Defendants with fewer financial resources may face challenges in meeting pretrial performance expectations, leading to inequalities in defendants’ ability to obtain more favorable plea offers. DA's offices should consider only making specific performance demands for services that are readily available to low-income defendants, such as programs offered for free. Alternatively, prosecutors could decline to prosecute low-level cases that stem from substance use or mental health issues and encourage law enforcement to make direct referrals to social service agencies instead. Otherwise, this practice risks exacerbating inequalities as more privileged defendants have greater resources to meet the performance demands compared to disadvantaged defendants. More broadly, these findings call for policies that address the underlying inequalities in access to health-care and social services, which would reduce inequality in defendants’ ability to meet performance demands.