Gender Disparities in Plea Bargaining

Though gender disparities in society often favor men over women, the converse is true in the criminal justice system. A study of 46,150 criminal cases in Wisconsin revealed that female defendants receive more lenient treatment than males. Females are twenty percent more likely than males to have their initial charges dropped or reduced. Race often complements gender in plea-bargaining decisions. For example, the charge reduction rate for white female defendants is approximately fifty percent higher than that for Black males. Black females and white males experience similar charge reduction rates, which fall between those of white females and Black males. These differences are driven primarily by “low information” cases where the observable characteristics of the defendants and offenses provide little information about the defendants’ innate criminality. These are often cases for misdemeanors and low-level felonies in which the defendants have no prior convictions. Absent observable characteristics, prosecutors often resort to gender and race as proxies for defendants’ criminality and recidivism risk. This bias underscores the need to reexamine both the role of evidence of disparate impact in equal protection cases and how the criminal justice system should treat misdemeanors.

“[D]istrict attorney offices across the nation have tried to collect and use data to internally identify and address instances of biases in the exercise of prosecutorial discretion. The availability of this type of information would also allow courts and other external groups to scrutinize prosecutorial decision-making[.] . . . Decision-makers . . . can be held accountable and this accountability can help legitimize the system in the eyes of all citizens.” p. 1298–99