Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void.
In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We collected systematic data from two prosecutors’ offices for one year. The Article describes how the data-collection methodology was designed, piloted, and implemented, as well as the insights that have been generated. Our system can be readily adapted to other offices and jurisdictions. We conclude by discussing how documenting the plea-bargaining process can affect prosecution practices, defense lawyering, judicial oversight, and public policy, its constitutional and ethical implications, and its broader implications for democratic legitimacy. An open-prosecution approach is feasible and, for the first time in the United States, it is in operation.
* Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law, Duke University School of Law and the Faculty Director, Wilson Center for Science and Justice. William E. Crozier is the Research Director, Wilson Center for Science and Justice. Kevin Dahaghi is a Post-doctoral Fellow, Wilson Center for Science and Justice. Elizabeth J. Gifford is an Associate Research Professor, Sanford School of Public Policy, Duke University. Catherine Grodensky is a Ph.D. Candidate, Sanford School of Public Policy, Duke University. Adele Quigley-McBride is a Post-doctoral Fellow, Wilson Center for Science and Justice. Jennifer Teitcher is a Post-doctoral Fellow, Wilson Center for Science and Justice.
Many thanks to Stuart Benjamin, Joseph Blocher, Walter Dellinger, Kate Evans, Lindsay Graef, Ben Grunwald, Ryke Longest, Darrell Miller, Allison Redlich, Alex Reinert, Barak Richman, Neil Siegel, David Sklansky, Jenia Turner, Ronald Wright, and participants at a Duke Law School faculty workshop, the Sixteenth Conference on Empirical Legal Studies, a National Association of Criminal Defense Lawyers plea-bargaining conference, the 2022 American Psychology-Law Society annual conference, a Fair and Just Prosecution conference, a presentation to the North Carolina Prosecution Advisory Group, and an ABA Criminal Justice Section and Academy for Justice workshop for comments on earlier drafts. We are deeply grateful to District Attorney Satana Deberry and District Attorney Andrea Harrington for their and their offices’ collaboration in this work. We are extremely thankful for the research assistance provided by Kathy Fernandez, Eunice Kim, Emma Li, Matthew Ralph, and Ellie Studdard. This research was supported by the Wilson Center for Science and Justice at Duke Law and by a generous three-year grant awarded in 2021 by Arnold Ventures, the Chan Zuckerberg Initiative, and the Charles and Lynn Schusterman Family Philanthropies.