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Tuesday, May 22, 2007
Do Prosecutors Consider Prison Overcrowding When Making Their Plea Bargain Offers?
I'm working on a new paper entitled "An Informational Approach to the Mass Imprisonment Problem" (though suggestions for a better title certainly would be welcome). The core idea is that the problem of mass imprisonment in the United States could be reduced at the margins if prosecutors were more aware of the sheer number of people incarcerated and the conditions of confinement in local prisons and jails. In other words, if prosecutors were regularly advised of incarceration statistics -- the number of people incarcerated, the increase since last year, whether prisons are operating over capacity, and the number of facilities under court orders or consent decrees -- they might give marginally lower plea bargain offers. For instance, a prosecutor with more information about the overcrowding of local prisons and jails might offer 22 months for a drug possession charge instead of the jurisdiction's going rate of 24 months.
From what I've read and from the small number of prosecutors I've discussed this with informally, I get the sense that most prosecutors don't consider prison overcrowding in making their plea bargain offers. (So far, my attempts to survey local prosecutors' offices have failed.) Am I right about this? Do prosecutors give any consideration to the mass imprisonment problem when making plea bargain offers in run-of-the-mill cases? And would it make any difference if they did have this information?
Posted by Adam Gershowitz on May 22, 2007 at 10:16 AM in Criminal Law | Permalink
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I agree. My boyfriend just got sentenced to 28.8 months for being too poor to pay his restitution and for a failure to appear for the violation hearing because he was in the hospital. That was it, he was violated for not paying his restitution (he was on food stamps and medicaid at the time) and the prosecutor would not go below the minimum guidelines. Note that my boyfriend already had been on probation for 5 years (the max time for a grand theft which stemmed from a bad business deal with an ex) and had served the last two on community control with no new law violations. He received two concurrent sentences of 28.8 months for each charge and to top it off he only received 109 days time served for the FTA as opposed to the 188 he got for the violation. So he still has to stay in prison for an extra 70 days anyway! It's ridiculous when they let people out left and right for drug crimes and keep people in prison just as long for violent crimes. His son went to foster care because he had sole custody of him when he was arrested and he will most likely lose his parental rights now. The judge didn't care. My boyfriend told me he should've told them he had a crack problem and needed to get out to do some dope, then they would've let him out and put him in a program instead.:) Just for your information, this is Pinellas County, Florida.
Posted by: Christina | Jun 11, 2008 5:31:25 PM
Good question. I would guess that prison overcrowding might change decisions as to which cases to investigate and prosecute, but is less likely to lead to changes in plea bargain policies. But that's just a guess.
Posted by: Orin Kerr | May 22, 2007 2:45:32 PM
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