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Plea bargains and innocence

We've all had the easy cases:  our client's charged with some serious stuff, but it's all bullshit.  In fact, even the prosecutor admits his case is so weak that they're willing  they offer you a misdemanor.  It's no big deal; your client's already got a felony record, so he jumps at it.  As one judge told me, "In this county, innocence is a misdemeanor."

But most of us have had the hard cases, too:  our client's charged with some very serious stuff, you've got to explain to him that if he goes to trial and loses, he could wind doing decades in prison, as opposed to the five or ten years he'll get if he pleads to a lesser offense.   Despite his claims of innocence, he takes the plea.

And sometimes those claims of innocence are true.  They were for John Dixon, who pled guilty to a sexual assault rather than face a longer sentence if convicted.  He was released after serving ten years when DNA evidence established his innocence.

Dixon's story is one of those recounted in an upcoming law review article by a law professor and a psychologist on plea bargaining.  They've done a study which shows that even innocent people will rationally choose to plead guilty to something they didn't do in order to avoid greater punishment, something the Supreme Court recognized in North Carolina v. Alford, which permitted a court to accept a guilty plea even where the defendant denied guilt.  The authors then consider something that the Court skipped over in Alford:  whether it's a good idea to allow that.

Plea bargaining as we know it, the article points out, has a short history.  To be sure, the concept of a guilty plea has existed for over eight centuries, but up until the last it strictly prohibited providing any inducements to do so.  That changed here in the 20th century, largely as a result of overcriminalization (especially Prohibition) and the gradual overwhelming of the criminal justice system.  In the first couple decades after 1900, the percentage of defendants pleading guilty rose from 50% to 72%; as the Supreme Court pointed out earlier this year in Missouri v. Frye, the present percentage hovers around 95%.

The issue came to a head in 1970 with the Supreme Court decision in Brady v. United States.  Brady was charged with kidnapping, which was punishable by death, but only when imposed by a jury.  It didn't take much for Brady to figure out that he could avoid the electric chair by pleading guilty, which is what he did, but then came back and said that his guilty plea was invalid because he'd done it to avoid a death sentence.  The court rejected that, holding that the plea was "voluntary" as long as it was not induced "by actual or threatened physical harm or by mental coercion overbearing the will of the defendant."

The result has been the expansion of plea bargaining to the point where it's added a new phrase to the legal lexicon:  "sentencing differential," i.e., the difference between the sentence a defendant can receive on a plea and the one he faces if convicted at trial.  That difference can be huge in the Federal system, where the prosecutor has almost unfettered discretion in deciding what charges to bring (and what charges to allow the defendant to plead to), and the judge has a relatively narrow sentencing range under the guidelines.  It can also be a large in state courts, too, especially when faced with a judge likely to impose a "trial tax," and the possibility of consecutive sentences.

But life's hard, and all of us are sometimes faced with the prospect of making difficult choices.  It would be one thing if the system resulted in encouraging innocent people to plead guilty, but it certainly seems, as the Brady court found, that courts "satisfy[ing] themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged."

Does that cure the problem?  Hard to tell.  Studies of exonerations -- cases where DNA or other evidence emerged clearing the defendant -- show that relatively few pled guilty, but, as the article points out, that's somewhat misleading.  While overturning a guilty verdict is difficult enough, overturning a guilty plea is almost impossible, at least after sentence.  The standards for seeking DNA retesting under Ohio's statute, for example, require you to show that a different result of the testing could affect the verdict.  If you've admitted you committed the crime, that's going to be a very hard sell.

The authors try to make up for the lack of empirical evidence by doing an experiment.  Basically, they did an experiment in which students would be accused, often falsely, of having cheated on an exam, and then given the opportunity to admit it and be given a substantially lesser punishment than if they contested the issue.  The result was that almost 90% of the guilty students accepted the plea offer.  But so did over 56% of the innocent ones.

Whether this is an indication that large numbers of innocent people are pleading guilty to crimes they didn't commit is certainly worthy of debate, but it's somewhat beside the point.  Let's cut to the chase.  First, the chances are nil that this Supreme Court, or any Supreme Court, is going to declare plea bargaining illegal because of that possibility; the notion that plea bargaining is essential to the system -- regardless of the truth of that notion -- are simply too ingrained to permit the elimination of bargaining.  The real question is whether more steps should be taken to ensure that pleas are valid indications of guilt rather than the product of overwhelming inducement.  Some thoughts:

  • Judges can spend more time taking them.  Yeah, I know, when you do this five times a day it gets old.  But I've seen judges take a plea without ever looking at the defendant.  I've seen judges take pleas from four or five defendants, in four or five different cases, at a time.  A plea to a felony should be a very solemn proceeding.  No reason to treat it like a cattle call.
  • Appellate courts should spend more time reviewing pleas, and especially motions to withdraw them.  Before sentencing, motions should be "liberally granted," but they shouldn't be granted merely because the defendant had a "change of heart."  Why not?  I can back out of a home consumer contract within three days for no reason; I've seen courts turn down pleas resulting in 30+ year sentences where the motion for withdrawal was made within hours.  Finality is a desirable goal of the justice system, but so is deciding cases on the merits.  The balancing of the two is completely out of whack here.
  • Defense lawyers sometimes get too caught up in minimizing the damage to the client.  Maybe we need to have a little more respect for the idea that an equally worthy goal is obtaining an acquittal for a client who's innocent.  As long as the risks are explained to him, we need to soft-pedal pushing a client who's ardently maintaining his innocence to accept a plea.
  • If you're a prosecutor, you know when your case is bullshit.  Instead of trying to save face with a plea to something -- anything -- put on your big boy pants and nolle the case, or tell your supervisor that you think it should be nolled.  Your job is to do justice, not make your bosses happy or notch something you can call a "win."

Of course, this leaves unresolved the real question:  just how many cases are there of innocent people pleading guilty to something they didn't do?  I'm sure that I've had some, but they don't spring readily to mind.  What about you?  Use the comment section to tell me what experiences you've had in this area.

One last story on this.  I had a case a couple years ago that was complete BS, the prosecutor offered me a misdemeanor, I told her to pound salt, and she came back fifteen minutes later with a dismissal.  When I told my client, he said that he would have taken the misdemeanor.


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