Without plea bargains, the criminal justice system would cease to function with courts unable to handle the strain of the tsunami of charges that routinely get resolved before getting to trial. But the plea bargain process is messed up in its own right, with the criminal code so bloated with potential for overcharge that prosecutors can bully defendants into taking deals to avoid offenses that no self-respecting lawyer would really take to a jury. And with broad discretion like that, data shows significant racial bias in plea bargain negotiations. Unfortunately, the only check on this rests in the hands of judges who either rise directly from the prosecutor’s office or are too excited to clear the docket to push back.
Usually the bias in the process is characterized as “implicit,” but one local prosecutor’s office may have an “explicit” bias problem:
Florida Prosecutor Jack Campbell has a “racism policy” in his Jefferson County office, instructing prosecutors to make more punitive plea bargains against Hispanic people. pic.twitter.com/6VIPQILo6E
— Our Tallahassee (@OurTallahassee) April 19, 2023
This report from Our Tallahassee stems from whistleblowing attorney Mackenzie Hayes who worked in the State Attorney’s Office of Jack Campbell prosecuting misdemeanors. For five days during her tenure, she was sent to the Jefferson County office and discovered the memo above. As she put it to Our Tallahassee, “Oh my god, they wrote down the racism policy.”
To provide a bit more context to the highlighted selection, the memo purports to be a crib sheet for misdemeanor plea bargain rules. The quoted provision falls under a section headlined “No Valid Driver’s License” and offers 3 options:
– IF NO CRIMINAL HISTORY -> Diversion
– IF LIMITED CRIMINAL HISTORY -> Withhold + Costs
– IF EXTENSIVE CRIMINAL HISTORY and/or HISPANIC -> Adjudicated Guilty + Costs
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Given the driver’s license header, the “logic” is probably that the lack of government-issued ID increases the likelihood that the defendant is undocumented and they want to put their thumb on the scale against anyone who might not be a citizen. Which is still racist and a perversion of the idea that someone should only be punished for what prosecutors can actually prove, but teasing out the office’s internal justification sheds more light on how targeted it is.
“I definitely wouldn’t be surprised if it’s the policy in all the outer-lying counties,” Hayes said. “It definitely was not the policy in Leon, which just means it’s very targeted and intentional,” Hayes said.
It does indeed make it more targeted and intentional! This disparity would lend more support to the theory that the office deploys a double standard for plea deals specifically to harass rural workers that they suspect — but have no way of actually proving — might be undocumented. And they’re going to use a vague sense of someone’s racial background to punish what they know they have no legal power to punish.
Every plea deal involving a person of Latin descent coming out of this office should be immediately suspect. But that might inconvenience some judges so it probably won’t happen.
FLORIDA PROSECUTOR’S RACISM POLICY LEAKED [Our Tallahassee]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.