Skip to main content
SpringerLink
Log in

Measuring and Explaining Charge Bargaining

  • Published:
Journal of Quantitative Criminology Aims and scope Submit manuscript

Abstract

Charge bargaining is a potentially important form of discretion in criminal sentencing that is obscured in many studies of sentencing outcomes. Our procedure to measure the difference in sentencing outcomes caused by plea bargain emphasizes the amount, in months, that the sentence length is reduced. Using this measure, we compare prosecutorial discretion across counties in two different states. We conclude that charge bargaining plays an empirically important role in determining sentencing outcomes. Furthermore, we find that measuring the distance (in months of prison time) moved during a charge bargain may provide a very different estimate of the discretion than is given by the rate of bargaining, which is the usual measure used. Although the rate of charge bargaining was higher in the voluntary guidelines state, its impact on sentences was greater in the presumptive guidelines jurisdiction, as predicted by Reitz (1998). We further observe a dramatic difference in predictions from shifting the case characteristics underlying the summary measure. This result reveals that distributional differences (either due to the underlying criminal activity or due to the overall level of severity of punishment) can easily obscure the inferences necessary for understanding the operation of the systems. Our finding of differential charge bargaining in these two jurisdictions should provide a caution when comparing the results of studies of disparity in sentencing across jurisdiction types.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. For a comprehensive review of sentencing research, see Spohn (2000).

  2. Albonetti adds a departure variable into a Tobit for sentence length, and then interacts race and gender with that variable. This interaction in effect looks to determine if the “value” of a departure varies by race and gender. Mustard’s analysis of the departure distance as the dependent variable is a more fully specified version of this model.

  3. In 1998, 94% of all felony convictions in state court were the result of plea bargains (U.S. Department of Justice 2001, Table 10). This restriction allows us to focus on the vast majority of convictions without modeling the selection of cases for trial. Plea bargains are arrived at in negotiations between the defense counsel and the prosecution. It is common to characterize plea bargains as “contracts” (Scott and Stuntz 1992) occurring in the context of asymmetric information (Reinganum 1988). Support for the view that the process responds to the context surrounding it comes from LaCasse and Payne’s (1999) finding that the reputation of the judge assigned to hear a case if negotiations fail influences the outcome of negotiations (see also Tonry 1996).

  4. The message with respect to the Federal guidelines is less clear. A self-review by the Federal Sentencing Commission has found increased consistency, a GAO review cast doubts on these conclusions, and the academic literature is also mixed (Anderson et al. 1999; LaCasse and Payne 1999).

  5. This is particularly problematic for analyzing disparity in the federal system, as the margin between federal and state jurisdiction has moved over time (Beale 1996; Brickey 1995).

  6. Most researchers take pains to note this possibility even where they cannot directly address it (e.g., Stolzenberg and D’Allessio 1994, p. 308; Engen and Gainey 2000, p. 1221).

  7. The importance of taking an inclusive definition of sentencing outcome becomes readily apparent when comparing jurisdictions. Charge bargaining in the strict guideline state may include moving offenders into misdemeanor categories not covered by the guidelines. Ignoring offenders convicted of misdemeanor offenses will therefore lead to misleading conclusions about the disparity in the system. For example, consider D’Alessio and Stolzenberg’s (1995) analysis of the impact of guidelines in Minnesota on jail populations. Numerous studies (Miethe and Moore 1986; Stolzenberg and D’Alessio 1994; Miethe 1987) have made the argument that Minnesota guidelines decreased disparity without increasing plea bargaining. However, the Minnesota guidelines did not cover incarcerations in jail, and the data sets used in the above analysis did not include information about jail incarcerations. Increased use of jail sentences, which would avoid the guidelines, would be undetected by data on prison incarceration. D’Alessio and Stolzenberg (1995) used aggregate data on jail populations to show that judges and prosecutors did increase their use of jail after the guidelines, particularly when prisons became crowded.

  8. In parts of the sentencing grid, sentencing ranges include probation. By omitting the probation cases, the usual model in the criminology literature essentially truncates the amount of measured discretion, leading to an underestimate of the true unexplained variation in sentence outcomes.

  9. For more detail on the Tobit model see Smith and Brame (2003) and Osgood et al. (2002).

  10. We will show in Sect. 5 that Washington has shorter sentences than Maryland. This in part reflects the elimination of the parole board in Washington (Hughes et al. 2001). Therefore, 1 month of sentence in Washington has greater impact on the sentencing outcome as defined by Reitz (1998) than the same month in Maryland. Measuring change in discretion as a proportion of the average sentence eliminates this potential source of bias (the effect of parole is the same in both the numerator and denominator, and cancels out).

  11. Note that these values are not comparable to published statistics from the SCPS. The data file considers “misdemeanor” and the crime type categories to be mutually exclusive. We recoded the offense information to create a true representation of crime type independent of the felony/misdemeanor dimension.

  12. In 2001, 422 people per 100,000 population were incarcerated in Maryland. The comparable figure for Washington was 249 (U.S. Department of Justice 2002b).

  13. As a robustness check, we re-ran all models without demographic controls and found no qualitative difference. In response to an anonymous referee, we also ran a model with age, race and sex interactions to more accurately reflect the literature. Because of the missing data on race, and the small sample sizes (in particular for female), these models led to instability in the main coefficients of interest. We focus on the results from the model without the interactions because the focus of this article is not on the extra legal effects of demographic characteristics.

  14. An anonymous referee suggested we attempt to do the analysis described below for the two counties in Maryland separately to help build intuition about the extent to which the observed differences were truly state or jurisdictional differences, and not differences only at the county level. Because of the small sample size of Montgomery County, this exercise does not have the power we would prefer. Nonetheless, the pattern reported below holds for both counties relative to King County. The effect of charge bargaining is substantially larger in absolute terms in Montgomery County than in Baltimore City (8.24 months versus 2.52 months).

  15. A related test is reported in Bushway and Piehl (2001, p. 759). Both Engen and Gainey (2000) and Bushway and Piehl (2001) argued that the presumptive sentence is a better measure of how legitimate factors should influence sentencing outcomes than the traditional approach of controlling for the scores that determine the presumptive sentence. The substitution of the presumptive sentence for the criminal history and offense scores increases the explanatory power in Washington and leads to a reduction in explanatory power in Maryland, again suggesting that there is less unsystematic variation in Washington.

  16. The authors contributed equally to this manuscript. We thank Charles Wellford for helpful comments and Jill Farrell for excellent research assistance. The research described herein was supported under award NIJ 2002-IJ-CX-0023 from the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in the document are those of the authors and do not necessarily represent the views of the Department of Justice.

  17. This section draws heavily upon Administrative Office of the Courts (1993, Unpublished manuscript).

  18. A goal was for the reform not to lead to an increase in incarceration.

References

  • Administrative Office of the Courts (1993) Review of the Maryland sentencing guidelines: concepts and 1987 revisions. Administrative Office of the Courts, Annapolis (Unpublished manuscript)

  • Albonetti CA (1997) Sentencing under the federal sentencing guidelines: an analysis of the effects of defendant characteristics, guilty pleas, and departures, 1991–1992. Law Soc Rev 31:601–634

    Article  Google Scholar 

  • Albonetti CA (1998) The role of gender and departures in the sentencing of defendants convicted of a white-collar offense under the federal sentencing guidelines. In: Ulmer JT (eds) Sociology of crime, law, and deviance, vol 1. JAI Press, Greenwich

    Google Scholar 

  • Alschuler A (1978) Sentencing reform and prosecutorial power: a critique of recent proposals for “fixed” and “presumptive” sentencing. Univ PA Law Rev 126:550–570

    Google Scholar 

  • Anderson JN, Kling JR, Stith K (1999) Measuring interjudge sentencing disparity: before and after the federal sentencing guidelines. J Law Econ 41:271–307

    Article  Google Scholar 

  • Barry D, Greer A (1981) Sentencing versus prosecutorial discretion: the application of a new disparity measure. J Res Crime Delinq 18:254–271

    Article  Google Scholar 

  • Beale SS (1996) Federalizing crime: assessing the impact on the federal courts. Ann Am Acad Pol Soc Sci 543:39–51

    Article  Google Scholar 

  • Bjerk D (2005) Making the crime fit the penalty: the role of prosecutorial discretion under mandatory minimum sentencing. J Law Econ 48(2):591–625

    Article  Google Scholar 

  • Blakely v. Washington, 542 U.S. (2004) O’Connor’s dissenting

  • Brickey KF (1995) Criminal mischief: the federalization of American criminal law. Hastings Law J 46:1135–1174

    Google Scholar 

  • Bushway SD, Piehl AM (2001) Judging judicial discretion: legal factors and racial discrimination in sentencing. Law Soc Rev 35(4):733–764

    Article  Google Scholar 

  • Bynum TS (1982) Prosecutorial discretion and the implementation of a legislative mandate. In: Morash M (eds) Implementing criminal justice policies. Sage Publications, Beverly Hills, pp 47–59

    Google Scholar 

  • Carrow D, Feins J, Lee B, Olinger L (1985) Guidelines without force: an evaluation of the multi-jurisdictional sentencing guidelines field test. Abt Associates, Cambridge

    Google Scholar 

  • Coffee J, Tonry M (1983) Hard choices: critical tradeoffs in the implementation of sentencing reform through guidelines. In: Tonry M, Zimring F (eds) Reform and punishment: essays in criminal sentencing. University of Chicago Press, Chicago

    Google Scholar 

  • D’Alessio SJ, Stolzenberg L (1995) The impact of sentencing guidelines on jail incarceration in Minnesota. Criminology 33:2

    Article  Google Scholar 

  • Engen RL, Gainey RR (2000) Modeling the effects of legally relevant and extralegal factors under sentencing guidelines: the rules have changed. Criminology 38:1207–1229

    Article  Google Scholar 

  • Engen RL, Steen S (2000) The power to punish: discretion and sentencing reform in the war on drugs. Am J Sociol 105:1357–1395

    Article  Google Scholar 

  • Farrell J (2003) Mandatory minimum firearm penalties: a source of sentencing disparity? Justice Res Pol 5:95–115

    Article  Google Scholar 

  • Frankel ME (1972) Criminal sentences: law without order. Hill & Wang, New York

    Google Scholar 

  • Frase R (1993) The role of the legislature, the sentencing commission, and other officials under the Minnesota Sentencing Guidelines. Wake Forest Law Rev 28:345–379

    Google Scholar 

  • Hofer PJ (2000) Federal sentencing for violent and drug trafficking crimes involving firearms: recent changes and prospects for improvement. Am Crim Law Rev 37:41–73

    Google Scholar 

  • Hughes TA, Wilson DJ, Beck AJ (2001) Trends in State Parole, 1990–2000 (NCJ 184735). Bureau of Justice Statistics, Washington

    Google Scholar 

  • Johnson BD (2003) Racial and ethnic disparities in sentencing departures across modes of conviction. Criminology 41:449–490

    Article  Google Scholar 

  • Kessler DP, Piehl AM (1998) The role of discretion in the criminal justice system. J Law Econ Organ 14:256–276

    Article  Google Scholar 

  • Kramer J, Ulmer JT (1996) Sentencing disparity and departure from the guidelines. Justice Q 13:81–106

    Article  Google Scholar 

  • Kramer J, Ulmer JT (2002) Downward departures for serious violent offenders: local court “corrections” to Pennsylvania’s sentencing guidelines. Criminology 40:897–931

    Article  Google Scholar 

  • Kramer J, Ulmer JT, Kurlychek M (2003) Prosecutorial discretion and the imposition of mandatory minimum sentences. ASC conference presentation

  • LaCasse C, Payne AA (1999) Federal sentencing guidelines and mandatory minimum sentences: do defendants bargain in the shadow of the judge? J Law Econ 42:245–269

    Article  Google Scholar 

  • Loftin C, Heumann M, McDowall D (1983) Mandatory sentencing and firearms violence: evaluating an alternative to gun control. Law Soc Rev 17:287–318

    Article  Google Scholar 

  • Miethe TD (1987) Charging and plea bargaining practices under determinate sentencing: an investigation of the hydraulic displacement of discretion. J Crim Law Criminol 78(1):155–170

    Article  Google Scholar 

  • Miethe TD, Moore CA (1986) Racial differences in criminal processing: the consequences of model selection on conclusions about differential treatment. Sociol Q 27:217–237

    Article  Google Scholar 

  • Mustard DB (2001) Racial, ethnic and gender disparities in sentencing: evidence form the U.S. Federal Courts. J Law Econ 44:285–314

    Google Scholar 

  • Oaxaca R (1973) Male–female wage differentials in urban labor markets. Int Econ Rev 14:693–709

    Article  Google Scholar 

  • Osgood DW, Finken L, McMorris B (2002) Analyzing multiple-item measures of crime and deviance II: Tobit regression analysis of transformed scores. J Quant Criminol 18:319–347

    Article  Google Scholar 

  • Paternoster R, Brame R, Bacon S, Ditchfield A (2004) Justice by geography and race: the administration of the death penalty in Maryland, 1978–1999. Margins: Maryland’s Law J Race Religion Gend Class, pp 1–97

  • Reinganum JF (1988) Bargaining and prosecutorial discretion. Am Econ Rev 78:713–728

    Google Scholar 

  • Reitz K (1998) Modeling discretion in American sentencing systems. Law Pol 20:389–428

    Article  Google Scholar 

  • Rhodes W (1991) Federal criminal sentencing: some measurement issues with application to pre-guideline sentencing disparity. J Crim Law Criminol 81:1002–1033

    Article  Google Scholar 

  • Scott RE, Stuntz WJ (1992) Plea bargaining as contract. Yale Law J 101:1909–1968

    Article  Google Scholar 

  • Smith DA (1986) The plea bargain controversy. J Crim Law Criminol 77:949–968

    Article  Google Scholar 

  • Smith D, Brame R (2003) Tobit models in social science research. Sociol Methods Res 31:364–389

    Article  Google Scholar 

  • Spohn C (2000) Thirty years of sentencing reform: the quest for a racially neutral sentencing process. U.S. Department of Justice, National Institute of Justice, vol. 3, Washington, pp 427–501

  • Stolzenberg L, D’Alessio SJ (1994) Sentencing and unwarranted disparity: an empirical assessment of the long-term impact of sentencing guidelines in Minnesota. Criminology 32:301–310

    Article  Google Scholar 

  • Tonry M (1996) Sentencing matters. Oxford University Press, New York

    Google Scholar 

  • Ulmer JT, Miller LL (2002) Plea agendas in federal sentencing: quantitative and qualitative evidence from four district courts. Unpublished paper, Penn State University

  • U.S. Department of Justice (2001) Felony sentences in state courts, 1998. BJS Bulletin, October, NCJ190103

  • U.S. Department of Justice (2002a) State Court Processing Statistics, 1998: Felony Defendants in Large Urban Counties [Computer file]. Conducted by Pretrial Services Resource Center [producer], 2001, 1st ICPSR ed. Inter-university Consortium for Political and Social Research [distributor], Ann Arbor

  • U.S. Department of Justice (2002b) Prisoners in 2001. BJS Bulletin, July, NCJ195189

  • Washington State Sentencing Guidelines Commission (1985) Sentencing practices under the sentencing reform act. Washington State Sentencing Guidelines Commission, Washington

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Department of Economics, Rutgers University, 75 Hamilton Street, New Brunswick, NJ, 08901-1248, USA

    Anne Morrison Piehl

  2. School of Criminal Justice, University at Albany, SUNY, 135 Western Ave., Albany, NY, 12222, USA

    Shawn D. Bushway

Authors
  1. Anne Morrison Piehl
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Shawn D. Bushway
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Anne Morrison Piehl.

Additional information

Much of the work on this manuscript was completed while Bushway was a professor at the University of Maryland

Appendix

Appendix

Institutional features of Maryland and Washington

In May 1983 Maryland’s Judicial Conference, a body of all Maryland judges, voted to apply guidelines statewide beginning July 1, 1983.Footnote 17 The judges took this action voluntarily, without legislative mandate. These guidelines were administered by a sentencing guidelines board of 14 justices representing each of Maryland’s judicial circuits. The guidelines had four explicit goals: (1) increasing equity in sentencing, (2) articulating an explicit sentencing policy with a regular basis for review and change, (3) providing information for new judges and (4) promoting increased visibility and understanding of the sentencing process.

The guidelines apply to circuit courts only, with separate guideline grids for crimes against the person, crimes against property and controlled dangerous substance crimes. The sentences are based on the seriousness of the primary offense and the offender’s prior criminal history record. The guidelines board placed all crimes into five seriousness categories. Offense seriousness for person offenses also takes victim injury, weapon usage and special vulnerability of the victim into account. The “prior criminal history” score is based on prior adult criminal record, prior adult parole and probation violations, prior juvenile record (for offenders age 25 or younger), and relationship to criminal justice system at the time of the offense. The sentencing board considered but ultimately rejected the formal use of mitigating factors. Mitigating factors such as “providing substantial assistance” are to be taken into account by the judge with no formal advice from the guidelines board. No official list of proscribed factors is provided. The guidelines themselves are voluntary, with no penalty for sentencing outside of the range provided by the guidelines. The sentence ranges attached to the grid are broad and deliberately descriptive, rather than prescriptive. In 2000, Maryland became a legislatively mandated guideline state, although the guidelines remain descriptive and voluntary.

In contrast, the guidelines in Washington have been legislatively mandated from their inception in 1984. Guidelines apply to all felony cases, and all cases are sentenced on one 10 × 15 grid. The mission statement for the commission has at least five goals: (1) impose a sentence structure that ensures that the punishment for an offense is proportionate to the seriousness of the offense and an individual’s criminal history, (2) increase consistency in sentencing, (3) protect the public, (4) provide the offender with an opportunity to improve him- or herself and (5) make frugal use of the state’s resources.Footnote 18 Thus, the commission did not intend to remove discretion from sentencing, but did intend to “structure” that discretion so that the goals were met. For example, judges are allowed and even encouraged to use alternative/intermediate sentences for non-violent offenders sentenced to 1 year or less in prison.

The crime seriousness level is determined by the classification of the offense of conviction. The criminal history score is calculated using a points system based on the number of prior felony criminal convictions, the relationship between prior offenses and the current offense, the presence of multiple prior or current convictions, and the custody status of the offender when the crime was committed. Sentences are determinate and the guidelines are presumptive, with departures allowed only for substantial and compelling reasons. Justification of a departure from the guidelines must include a written explanation of findings of fact and conclusions of law leading to the departure sentence. Departure sentences are subject to appeal by either the defendant or the prosecutor.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Piehl, A.M., Bushway, S.D. Measuring and Explaining Charge Bargaining. J Quant Criminol 23, 105–125 (2007). https://doi.org/10.1007/s10940-006-9023-x

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10940-006-9023-x

Keywords

Search

Navigation