Forget "White Boys" -- The Real Plea Bargaining Story

10/14/2010 03:51 pm ET | Updated May 25, 2011

Let's take a moment to consider the frustration of Judge Joseph Williams of the Allegheny County Court in Pennsylvania. The judge found himself in the center of a minor media fuss last week after he chastised a prosecutor for offering a man accused of fighting with police officers "a ridiculous plea that only goes to white boys."

To be sure, the judge's phrasing was unfortunate. Had he expressed the same idea without uttering "white boys," Judge Williams, who is black, might have succeeded in directing media scrutiny to one of the murkiest aspects of the legal system instead of to his choice of words. Even as sentencing guidelines increasingly limit judicial autonomy, prosecutors enjoy tremendous leeway in the deals they make with defendants in return for guilty pleas. "Plea bargaining, by its nature, is done behind the scenes," said Barry Krisberg, a criminologist at the University of California's Berkeley Center for Criminal Justice. "It's one of the least understood areas of the criminal justice system." Those are words that journalists love to hear.

Krisberg said that there's a reason plea bargaining remains poorly investigated by criminal justice scholars, not to mention resource-starved news organizations. The details of these deals are often scrawled in the margins of an assistant District Attorney's notebook rather than entered in the public record, Krisberg said. He pointed to a study of gun charges in Alameda County. Prosecutors would write "defendant swallowed the weapon" in their notes to indicate that a gun charge had been dropped in exchange for a guilty plea. These deals are not part of the vast databases of criminal justice statistics maintained by the state and the federal governments. Assembling the evidence to prove or disprove Judge Williams' suspicions about racial discrepancies in plea bargaining in Pennsylvania would require a tremendous amount of labor, said Krisberg. But it's not impossible.

Digging into the documents in the Allegheny County District Attorney's office is what Sonya Ross, the race and ethnicity editor for the Associated Press in Washington D.C., would advise local reporters to do. She allows that few news organizations still possess the editorial muscle to pull off an investigation of that scale. This wasn't always the case. Almost 20 years ago, the San Jose Mercury News reviewed 700,000 California criminal cases and found that whites were more likely to have their cases dropped than black and brown defendants.

Not only did newspapers like the San Jose Mercury News have more reporters and staff to take on massive projects in the public interest 20 years ago, but a deeper bench of seasoned editors and reporters meant that news organizations as a whole had firmer grasps on the intricacies of civic institutions, said Ross. Reporters, said Ross, can use a reeducation on the basics of the three branches of government. "A lot of the time reporters just don't know the procedures they are covering, and the media is moving at warp speed," said Ross.

The blistering pace of the news cycle certainly worked in Judge Williams' favor. His secretary said Tuesday he's not interested in discussing the episode with media. And the national and local press appear to have moved on, content to report that Judge Williams recused himself from the case, and a white judge accepted 24-year-old Jeffery McGowan's plea agreement. There must be more to the story.