How Bad Arrests Lead to Bad Prosecution: Exploring the Impact of Prior Arrests on Plea Bargaining

Because most plea-bargaining studies focus upon screening and sentencing, scholars have uncovered relatively little about the relationship between plea bargaining and defendants’ prior arrest records. Arrests and arrest records can have negative short- and long-term effects. For example, prosecutors have used non-conviction prior arrest data to determine appropriate punishment in subsequent, unrelated cases. One can analyze this practice and its consequences through legal-, moral-, and cost-focused lenses. Statutory and case law insufficiently regulates prosecutors’ use of one’s prior record in case-processing. Defendants with prior arrest history face more severe punishments, and racial and ethnic disparities in plea offers increase remarkably when prosecutors consider prior arrests instead of prior sentences. Unnecessary arrests and detentions are wasteful, harming both the criminal justice system and the general public. Locating and using prior arrest records in plea bargaining costs significant time and money for a resource-shy justice system, detainees, and their families.

“[W]e argue that (a) arrests should be viewed as a last resort, to be used whenever issuing warnings, citations, or summonses would be inadequate safeguards of public safety, and (b) prosecutors’ offices should not use prior arrest as a factor by default when making plea offer determinations unless they are able to justify how using prior conviction record alone does not serve the purposes of justice, safety, and fairness, which these very offices are created to ensure.” p. 993