This summer, Durham County District Attorney Satana Deberry was the target of pointed criticism in “Durham Under Fire,” a WRAL documentary that examined the increasing number of homicides and implied that Deberry’s office was at least partly to blame for being soft on crime.

Deberry said her office did not measure success based on the number of homicide cases successfully prosecuted but instead looked at individual cases and whether the offenders had been held accountable.

Last week, the district attorney’s office made public the results of a one-year study that examined plea bargaining: how prosecutors determine pleas along with how the process may change initial charges filed against someone and how final sentences are imposed.

The final report, “Plea Bargaining in the Durham County District Attorney’s Office,” is the result of a partnership between the DA’s Office and the Wilson Center for Science and Justice at the Duke University Law School.

During the year-long “Plea Tracker Project,” researchers collected and analyzed information from more than 300 superior court cases and more than 1,800 felony and misdemeanor charges, according to a press release from the county district attorney’s office made public on February 22.

Deberry, in the press release, stated that she partnered with the Wilson Center to “examine the factors that go into prosecutorial decision-making” to help her office “better understand how felony cases are resolved, identify disparities in those resolutions, and bring more transparency to the process.”

“As prosecutors, the plea process is our biggest opportunity to use our discretion to create a more equitable system,” Deberry said. “The Plea Tracker Project is an important tool for ensuring our case resolutions are equitable, consistent, and tailored to address the root causes of criminal behavior.”

Deberry added that the project “has already shed new light on how to achieve public safety, fairness, and justice for our Durham community.” 

Deberry described the plea bargaining process as “a historically opaque system,” one that needs greater transparency, especially when one considers that plea bargains account for the disposition of 90 percent to 95 percent of all criminal court cases nationwide.

The district attorney noted that “plea offers are often not documented so available court data does not reflect what happened during the negotiations.”

Indeed, the report’s introduction notes that while information about plea terms and sentences are publicly available, very little is documented about how prosecutors negotiate offers. Moreover, the public may know what gets charged but not the reasoning for how or why a certain plea deal was reached. 

And it’s not just the public that’s left in the dark about the process, according to the report, but also other prosecutors, defense attorneys, and judges “are largely uninformed about prosecutorial discretion and its important influence on criminal outcomes.”

As a consequence, the lack of transparency in the process “can create inconsistencies in how plea negotiations are handled,” according to the report.

Duke Law Professor Brandon L. Garrett, faculty director of the Wilson Center, stated in the press release that he hopes the project with the county district attorney’s office will be a model for other offices.

“For years, academics and policymakers have called for meaningful data on the plea process,” he said. “The leadership demonstrated by District Attorney Deberry during this year of impactful work shows that it is feasible and valuable to track pleas. We believe that this type of plea tracking should be the national standard practice.”

Some of the findings from the 32-page report:

  • Nearly two-thirds of all charges (1,216 of 1,874 charges) were dismissed by prosecutors. The majority of dismissals were superior court charges—81 percent, or 987 of 1,216 charges. About one in 10 cases—35 of 325 cases—were plea bargained to a misdemeanor charge only.
  • When it came to sentencing, prison and probation-only sentences were each imposed in 40 percent of all cases. More than half of cases with violent crimes received a prison sentence, and nearly half of cases with non-violent crimes received a probation-only sentence. The most common types of offenses involved dangerous drugs, larceny, and robbery, and the single most common charge was possession of a firearm by a felon in 42 cases. 
  • About 80 percent of the people charged with felony crimes in Durham were Black; whites accounted for about 15 percent of the 325 cases, and Latinx community members, five percent. About three quarters of people charged with felony crimes had a prior conviction, and 44 people with no criminal record were held in pretrial detention. 
  • There was a victim in 59 percent of the cases. Most of the victims were Black and/or female. Prosecutors communicated with victims in 85 percent of the cases and discussed the plea terms with them before making the initial offer in 80 percent of the cases. The most commonly considered mitigating factors were the person’s record, history of substance use, and age. For aggravating factors, it was the seriousness of the offense, criminal history, and history of recidivism. 
  • Cases represented by private counsel more often received probation-only sentences, but also received longer prison sentences. Prosecutors corresponded with the defense about three quarters of the time before making the initial offer, and 95 percent of the time after making the initial offer. Defense attorneys requested changes to the initial plea offer in 56 percent of the cases, and some changes were made to the initial plea offer in 83 percent of the cases.

According to the release, the project also highlighted conditions of court-ordered supervision that were present in about three quarters of the cases, with no-contact orders, mental health stipulations, and anger management training most common in violence crime cases. In non-violent cases, there were court-ordered substance abuse assessments and cognitive behavioral interventions.

The study also found that judges “appeared to play a less impactful role in these pleas” and did not modify the pleas in 87 percent of the cases.

“However,” the release noted, “in the small number of cases in which the sentence was left open, judges often added additional conditions.”

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