Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system. A key player within the criminal legal system who could dramatically reduce or eliminate these disparities are prosecutors. Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer. Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system. There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases. The first core problem is that plea bargaining is largely unsupervised and prosecutors have extraordinary power and virtually unlimited discretion in the process. Prosecutors regularly engage in hard bargaining tactics and there is no meaningful check on prosecutorial bias in deciding what offers to make on what cases. The second core problem is that plea bargaining can exacerbate racial disparities and bias. The third core problem is that once a case comes into the criminal legal system, and the case is charged, a prosecutor’s first offer acts as an anchor in the negotiation, regardless of whether the offer reflects bias. Unlike in other negotiation contexts, the defendant in a criminal case most often has no meaningful option to counter or walk away from the prosecutor’s offer.In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that prosecutors, even in offices that adopt blind charging and plea bargaining policies, would remain blind to who the individual defendant is in all cases, particularly in cases where the first offer is made after arrignment. Therefore, the individual fix is to train prosecutors on empathy. Prosecutors' offices should expand and improve training and programs on empathy to change how prosecutors view defendants. People tend to have empathy for, and in the criminal context give the benefit of the doubt to, those who are "more like them" - including being the same race and socio-economic group. Empathy for others is a skill that can be taught, like trial skills, negotiation, or writing. Prosecutors' offices need to include empathy skills as an integral part of their overall training. Improved empathy skills would help prosecutors to stop looking at defendants as simply "criminals" - a label that is often racially-based. Instead, more prosecutors could learn to see defendants, in the words of Bryan Stevenson, as "more than the worst thing" they have ever done
