A nearly perfect system for convicting the innocent.

• Author: Alschuler, Albert W.
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

1. HOW TO CONVICT THE INNOCENT

   A law school casebook asks whether plea bargaining "convict[s] defendants who are in fact innocent (and would be acquitted [at trial])." (1) As the question indicates, the fact that plea bargaining may lead some innocent defendants to plead guilty is not a powerful criticism of this practice. The casebook asks whether plea bargaining increases the number of wrongful convictions. Because no one can know how many wrongful convictions are produced either by trials or by guilty pleas, the question may seem unanswerable.

   But in fact the answer is easy. Convicting defendants who would be acquitted at trial is one of the principal goals of plea bargaining. "Half a loaf is better than none," prosecutors say. (2) "When we have a weak case for any reason, we'll reduce to almost anything rather than lose." (3) If the correlation between "weak cases" and actual innocence is better than random, plea bargaining surely "convict[s] defendants who are in fact innocent (and would be acquitted [at trial])."

   Prosecutors engage in both "odds bargaining" and "costs bargaining." That is, they bargain both to ensure conviction in doubtful cases and to save the costs of trial. Were a prosecutor to engage in odds bargaining alone, he might estimate a defendant's chance of conviction at trial at 50% and this defendant's probable sentence if convicted at trial at ten years. Splitting the difference, the prosecutor then might offer to recommend a sentence of five years in exchange for a plea of guilty. Five years is what economists would call the defendant's "expected" sentence--his predicted post-trial sentence discounted by the possibility of acquittal. (4)

   An offer of five years, however, would leave a risk-neutral defendant indifferent between pleading guilty and standing trial, and the prosecutor hopes to avoid a trial. He does not want the defendant to be indifferent. The prosecutor therefore engages in costs bargaining as well as odds bargaining. He tailors his final offer, not to balance, but to overbalance the defendant's chances of acquittal. (5) This prosecutor may offer four years in exchange for a plea--or two or three. (6) One can easily discover real-world cases in which prosecutors fearful of defeat at trial have struck bargains allowing defendants facing potential life sentences to plead guilty to misdemeanors. (7)

   When a prosecutor has no chance of obtaining a conviction at trial, he may be unable to make an offer that will overbalance the defendant's chances of acquittal. (8) In every other case, however, the prosecutor can reduce the offered punishment to the point that it will become advantageous for the defendant to plead guilty whether he is guilty or innocent. Trials should occur only when defendants irrationally press their luck or when prosecutors and defendants disagree about probable trial outcomes and sentences. (9) In fact, trials are extremely rare in the American criminal justice system. The Supreme Court noted in 2012 that 97% of federal convictions and 94% of state convictions are the result of guilty pleas. (10)

   Shawn Bushway, Allison Redlich, and Robert Norris recently provided evidence that real-world plea bargaining fits the economic model just described. They presented a hypothetical aggravated robbery case to 1585 prosecutors, defense attorneys, and judges, offering one of sixteen evidentiary variations on the case to each respondent. (11) They asked each respondent to estimate the likelihood of conviction at trial, the probable sentence following conviction at trial, and what sentence the respondent would accept as part of a plea agreement. For all but a few variations, the average acceptable sentence following a guilty plea was less that the predicted trial sentence discounted by the likelihood of acquittal. (12) Plea bargaining plainly makes it advantageous for innocent defendants with good prospects of acquittal to plead guilty.

   A legal system in which a prosecutor could convict whomever he liked just by pointing could lead to conviction in cases in which the prosecutor had no evidence at all. This system would be even more effective than ours in producing wrongful convictions. Ours, however, is nearly perfect.

   Officially, we profess adherence to the principle that guilt must be proven beyond a reasonable doubt. Our Supreme Court declares, "It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." (13) In almost every case, however, plea bargaining vaporizes the legal standard. Even the imagination of Franz Kafka never conjured up a system as strange as ours. What does the legal priesthood say to keep it afloat?

2. IS IT WRONG TO CONVICT THE INNOCENT?

   Here is the basic defense of this system: Bargaining may result in the conviction of "defendants who are in fact innocent (and would be acquitted [at trial])," but that does not mean it produces any wrongful convictions. It is better to be an innocent person on probation than an innocent person in prison. When an innocent defendant has been offered a beneficial deal, he should be permitted to take it. With friends who would block a wrongly accused defendant from entering an agreement that would reduce his expected sentence, he does not need enemies. Convicting the innocent is not wrongful when the innocent want it to happen. (14)

   Defenders of plea bargaining can note that, rather than increase the aggregate amount of punishment inflicted on the innocent, odds bargaining simply distributes it differently. If ten innocent defendants were to stand trial, one might be wrongly convicted and sentenced to ten years. With odds bargaining, all ten may be convicted, but each may serve only one year. The number of wrongful convictions will increase, but not the number of years of wrongful imprisonment. Moreover, with costs bargaining added to the picture, the total quantum of punishment inflicted on the innocent may diminish. (15) A champion of plea bargaining should not hesitate to acknowledge that bargaining "convict[s] defendants who are in fact innocent (and would be acquitted [at trial])." He should cheer their conviction as a mark of the freedom our great nation affords them.

   The Supreme Court offered two cheers (but not three (16)) for the autonomy of innocent defendants when it ruled in North Carolina v. Alford (17) that the Constitution does not preclude accepting a guilty plea by a defendant who protests his innocence. Alford was a capital case. The defendant told the court, "I ain't shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn't they would gas me for it...." (18) You might be surprised to learn that the Due Process Clause does not preclude imprisoning people who have neither been tried nor admitted their guilt, but the Supreme Court explained, "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." (19)

   The libertarian or "freedom of contract" defense of plea bargaining confronts some serious difficulties. An agreement produced by an improper threat ("your money or your life") is involuntary, (20) and a threat to impose "extra" punishment for standing trial is surely wrongful. The Constitution affords a right to trial, which means at a minimum that the government may not make standing trial a crime. (21) If post-trial sentences are imposed simply for the purpose of inducing guilty pleas, the libertarian defense collapses. Some of the people who champion plea bargaining by the innocent acknowledge that, in a "defensible" plea bargaining system, "those cases that go to trial must be decided on the merits, without penalizing the defendant for not pleading guilty. In other words, trial sentences must be objectively deserved.... Plea bargaining should therefore result in sentences less than this theoretically correct sentence." (22)

   The American criminal justice system does not fit this benign description. It is doubtful that any polity would deliberately sentence 95 percent of all offenders to less than they deserve or to less than is necessary to protect the public. Officials seem far more likely to impose "extra" punishment on a small minority of offenders to discourage exercise of the right to trial. (23) Moreover, America imprisons a higher proportion of its population than any other nation in the world except the Republic of Seychelles. (24) Surely our nation did not achieve its record for mass incarceration while sentencing 95 percent of all offenders to less than they deserve. (25) A Chicago judge explained our trial tariff this way: "He takes some of my time--I take some of his. That's the way it works." (26)

   Even the legal priesthood seems to have abandoned the fiction that today's post-trial sentences are those that would be imposed in the absence of plea bargaining. Quoting Professor Bibas, the Supreme Court noted in Lafler v. Cooper, (27) "The expected posttrial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view the full price as the norm and anything less a bargain." (28) Quoting Professor Barkow, the Court added in Missouri v. Frye, (29) "[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes." (30) These observations decimate the "voluntariness," "personal autonomy," "libertarian," or "freedom of contract" defense of plea bargaining. (31)

   The "autonomy" defense might leave one cold even if post-trial sentences were not inflated to generate guilty pleas. On this generous...