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Every year, more than 90% of all federal and state criminal cases are resolved through a plea deal, also called a plea bargain. In North Carolina, 90%-95% of cases are resolved through plea deals. A plea deal is a negotiated agreement between a defendant and prosecutor, whereby the defendant pleads guilty in return for a lesser sentence. During fiscal year 2022, 98% of cases in the state were resolved as a result of a guilty plea. As a result, defendants waive their right to trial. Plea deals are believed to save time and money because trials are both expensive and time consuming.
There are various strategies to persuade defendants to accept plea deals. One of the more common strategies, and controversial ones, is called charge stacking. By charging or threatening to charge defendants with more crimes, prosecutors gain an advantage, or more leverage, in the plea bargaining process. The threat of more charges increases the risk of a longer sentence if the defendant is convicted at trial.
Some proponents of charge stacking and plea deals see these agreements as an efficient pathway to a just outcome for defendants, victims and the criminal justice system — because with a plea deal, comes certainty:
- Prosecutors win a conviction.
- Defendants typically don’t have to risk a lengthier sentence if convicted at trial.
- Victims don’t have to testify in open court.
But critics argue that plea deals are often coercive in nature, forcing defendants to waive their constitutional right to trial to avoid a longer sentence. They also believe racial bias may be involved in plea deals and charge stacking, a practice for which the National Association for the Advancement of Colored People, NAACP, has called for a ban.
“Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants,” the American Bar Association’s Plea Bargain Task Force wrote in a report published this year. “The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations — than white defendants.”
To better understand charge stacking and its role in plea bargaining and racial disparities in sentencing in North Carolina, CPP launched the “Stacked Against” series. In part one of the “Stacked Against” series, we detailed the case of Terence Smith, a Black man in Winston-Salem who turned down a plea deal and was sentenced to more than 50 years in prison.
This guide will set out and define terms and concepts that are central to charge stacking and plea bargaining. The goal is to provide more context for these practices, which have become central to the criminal justice system. The guide is also intended to offer a resource for readers to better understand this practice and follow the stories CPP has reported on the subject.
If you have any questions or comments related to charge stacking and plea bargaining, please reach out to Jacob Biba at firstname.lastname@example.org.
Table of contents
- What is charge stacking?
- What is a plea deal?
- How does the plea bargaining process work?
- How common are plea deals?
- What are the pros and cons of plea deals?
- What is the ‘trial penalty’?
- Consecutive vs. concurrent vs. consolidated sentences
- Consecutive sentences
- Concurrent and consolidated sentences
- What is discretion?
What is charge stacking?
Charge stacking, which is sometimes referred to as charge bargaining, is when prosecutors charge, or threaten to charge, defendants with more crimes to increase leverage, or gain an advantage, in the plea bargaining process.
What is a plea deal?
A plea deal, or plea bargain, is an agreement between a defendant and prosecutor in which the defendants agree to waive their right to trial and plead guilty to one or more charges. In return, defendants often receive a lesser sentence than if they went to trial and were convicted.
Typically, prosecutors will drop some of the charges — or reduce the severity of charges — against a defendant — in exchange for the defendant’s guilty plea. Sometimes prosecutors will also ask the defendant to testify, or give evidence, against a co-defendant as an additional term of the plea bargain. They may also agree to not stack additional charges upon the defendants if they agree to the deal. In the case of Terence Smith, he was told he would face five more charges if he turned the plea bargain prosecutors offered him down. Despite the threat of more charges, Smith declined the deal, believing 10 years was too harsh a sentence given what he said was his limited role in the crime.
How does the plea bargaining process work?
In North Carolina, law enforcement typically charges a defendant with one or more crimes and then creates a charging packet or document, which details the charges. This packet is submitted to prosecutors, according to Satana Deberry, Durham County district attorney. Felony cases that involve crimes that are especially serious or violent may arrive at the district attorney’s office in what Deberry described as a “pre-charge,” or investigation phase. Typically, additional investigation in these cases is required before formal charges can be pursued.
Once the district attorneys receive and determine the charges, here’s what usually happens next:
- The case will be delivered to the grand jury, a group of citizens that convenes to determine whether enough evidence is present to bring forth a bill of indictment, or formal accusation, against the defendant.
- After the indictment, prosecutors will typically look at the evidence and prior record level of the defendant charged, Deberry said.
- Prosecutors may also reach out to the defendant’s attorney for a mitigation package, which is information that gives prosecutors a better understanding of the defendant’s motivations. Age and history of substance abuse are some of the most common mitigating factors, or extenuating circumstances, considered in Durham County. Aggravating factors, which are any circumstances that make the crime more severe, such as the defendant’s criminal history, are also taken into account.
- Prosecutors will then make a plea offer to the defendant, one that typically “meets both the evidence and the facts in the case, as well as takes in accountability and whether or not we think the case should be diverted from our regular criminal justice process,” Deberry said. In Durham County, those diversions include restorative justice initiatives like treatment programs and reconciliation with the victim.
- A defendant’s attorney typically receives the plea offer. In Buncombe County, the plea deal may arrive via a formal email with an expiration date, or it could arrive in a quick text message or conversation from an assistant district attorney detailing the offer’s terms, according to Courtney Booth, an assistant public defender in Buncombe County. “It just depends on who you’re working with,” Booth told Carolina Public Press.
- If the plea deal is accepted, the defendant will go to court. The judge will ask the defendant a series of questions to determine whether or not the defendant is entering into the plea bargain voluntarily.
- Judges may also reject the plea agreement if they believe the sentence is too extreme or not harsh enough. In that case, the prosecution and defendant must renegotiate the deal. The judge is also under no obligation to accept the prosecution’s sentence recommendation. If the judge enters a different sentence, the defendant may withdraw their guilty plea.
- Defendants may also make an open plea in court, where they agree to plead guilty to the charges without negotiating a sentence recommendation with the prosecution prior to the plea hearing.
- If a defendant turns a plea deal down, then a trial will typically be held. In North Carolina, a plea deal can be negotiated and accepted during trial, but it varies depending on the prosecutorial district. In Buncombe County, Booth said pleas are not typically accepted after a trial begins. “Once you decide to go to trial and test out the waters, you better go to trial,” she said.
How common are plea deals?
Plea deals are common. Defendants in 90% of federal criminal cases pleaded guilty in 2018, according to the Pew Research Center, a think tank based in Washington, D.C. In North Carolina, 96% of 375,000 cases analyzed by researchers were resolved through plea deals between 1998 and 2010.
What are the pros and cons of plea deals?
Some of the often cited benefits of plea deals include:
- Plea deals may offer certainty of outcome for the prosecution and defendant. “The penalty for going to trial is the uncertainty — if you are found guilty — of sentencing,” Deberry said. “Because then your sentencing will be left up to the trial judge. That is not always predictable. Whereas, in a negotiated plea — and all things being equal, which certainly all things are not always equal — you, at the very least, know what you’re facing.”
- Plea deals can save time and money. Trials are time consuming and expensive.
- With plea deals, victims don’t have to testify. In cases involving sexual assault or other violent crimes, victims won’t have to relive the trauma of the incident in open court.
But these benefits don’t come without a price, according to critics. The major consequences of plea deals include:
- Plea bargains can weaken a defendant’s constitutional right to a trial by jury.
- Racial bias may play a role in the plea bargaining process. In drug cases, Black defendants receive harsher sentences than white defendants facing the same charges, according to a report from the American Bar Association’s Plea Bargain Task Force published this year.
- When charge stacking is involved in the plea bargaining process, innocent people may plead guilty to avoid the trial penalty, or trial tax, and a longer sentence.
“I think that the coercive power of the plea deal can be problematic,” Ben Finholt, director of the Just Sentencing Project at Duke Law School’s Wilson Center for Science and Justice, told CPP. “I think that most prosecutors and district attorneys would say that it’s not problematic, because otherwise we cannot have an efficient administration of the courts. And it is hard to argue with them on that point. If we didn’t have plea deals, our courts, as currently staffed, would pretty much grind to a halt.”
What is the ‘trial penalty’?
The trial penalty is the difference in sentence prosecutors offer a defendant in a plea deal versus what the defendant receives if convicted at trial.
On average, there’s a difference of 11 years between sentences resulting from plea deals than trials for murder cases, according to one 2017 study. When it comes to crimes like fraud, the trial tax, another term for trial penalty, is three times more severe, studies have found. In cases of embezzlement, burglary and breaking and entering, the trial penalty is eight times higher.
Consecutive vs. concurrent vs. consolidated sentences
Consecutive sentences are sentences that run back to back, meaning the next sentence will not begin until the preceding sentence is served in its entirety. Consecutive sentences are sometimes referred to as “boxcar” sentences or stacked sentences. In the case of Terence Smith, six of the seven sentences he’s serving are running consecutively.
Concurrent and consolidated sentences
In North Carolina, sentences run concurrently, or at the same time, by default, unless a judge decides otherwise. A consolidated sentence, which is similar to a concurrent sentence, occurs when multiple charges are joined together, or consolidated, for judgment, resulting in one sentence. In a 2015 University of North Carolina School of Government blog post about consolidated sentences, Jamie Markham, a faculty member at the time wrote, “the law allows virtually unfettered discretion to disregard all but the most serious offense for a defendant convicted of multiple crimes.” In short, judges have significant power when it comes to sentencing.
What is discretion?
In sentencing, judges are able to use their discretion to hand down sentences they believe defendants deserve within the limits of the law and state sentencing guidelines.
Discretion is an ability prosecutors and judges have to make legal decisions based on their personal beliefs, as long as it’s within the bounds of state and federal law. And it’s a concept at the center of charge stacking, plea bargaining and sentencing. For example:
- Prosecutors have the discretion to stack charges upon a defendant to gain more leverage in a plea deal.
- Judges have the discretion to stack a defendant’s sentences — run them consecutively — to increase their prison term.
What’s next in our charge stacking series?
In part three of our series, we look at the effect charge stacking and plea bargains have had on the families of people who have been subjected to these practices. We speak to members of Terence Smith’s family, as well as Sherrod Nichols, another Winston-Salem man who faced stacked charges, and his family about the personal effects of the long prison terms they are facing.
- Stacked: Where Criminal Charge Stacking Happens — And Where it Doesn’t | Harvard Law Review
- 2023 Plea Bargain Task Force Report | American Bar Association
- “Punishment Without Trial: Why Plea Bargaining Is a Bad Deal” by Carissa Byrne Hessick
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The disparity in sentencing between whites and people of color for the same crime(s) is difficult, if not impossible, to explain away. The only reasonable explanation would appear to be the lingering presence of institutional racism.
Given that the overwhelming majority of judges in the southern states, and likely nationwide are white, what steps can be taken to reduce the incidence of disparate sentencing of people of color? Other than voting out the judges who are consistent offenders what other options exist? It’s a very frustrating set of conditions when the appearance of overt racism in the judicial system repeats year after year.