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Public Law & Legal Theory


In the 1990s, New York City implemented a particularly vigorous brand of localized order-maintenance policing. Such targeted enforcement of “borderline” offenses led to a skyrocketing rate of non-felony arrests in affected (predominantly poor and minority) communities and, consequently, created a crisis of systemic legitimacy within these communities. Notably, however, enforcement was increasingly heavy-handed only on the policing end. By contrast, when it came to plea bargaining, prosecutors were providing more and more lenient no-time or short-time pleas to reduced (often non-criminal) charges. In this essay, I offer a novel (and at least partial) explanation for this leniency trend. My explanation is a heretofore unrecognized plea-bargaining influence that I call grassroots plea bargaining. By grassroots plea bargaining, I mean a bottom-up pressure that in certain circumstances may lead prosecutors to reduce plea prices in order to purchase communal acquiescence to police policies that otherwise lack public support. In short, as police ramp up enforcement, prosecutors may feel the need to pull back on the punishment throttle to ensure that affected communities accept— or at least tolerate—hard-nosed police tactics.



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