Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, many innocent defendants are better off in a world with plea bargaining than one without it. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, or trial. Much of the worry over an innocence problem proceeds from misperceptions over (1) the characteristics of typical innocent defendants; (2) the types of cases they generally face; and (3) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases, recidivist innocent defendants face high pretrial process costs (particularly if the defendants are detained). But innocent defendants also enjoy low plea prices because prosecutors do not try to maximize sentence length in low-stakes cases. Moreover, defendants possess certain underappreciated bargaining advantages in these cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are punished by process and released by pleas. Thus, plea bargaining is no source of wrongful punishment; rather, it may be a normative good that cuts erroneous punishment short. Accordingly, the system must provide innocent defendants access to plea bargaining. Current vehicles for rational choice pleas--like no-contest pleas and equivocal pleas are not up to the task. Instead, the system should reconceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.
INTRODUCTION I. THE USUAL SUSPECTS A. Arrest Biases B. Charging Biases C. Dismissal Aversion D. Trial Biases . II. DEFENDANTS' PROCESS COSTS A. Process Pleas B. Process Costs and Defendant Categories III. PROCESS COSTS AND LENIENCY A. Workgroup Principles B. Lenient Pricing C. Fixed Pricing D. Judicial Input IV. BARGAINING IN LOW-STAKES CASES A. Oversight B. Bluffing C. Case Weakness V. WHERE PROCESS COSTS MATTER LITTLE: TRIAL PENALTIES VERSUS PLEA REWARDS VI. OBJECTIONS VII. FOR FALSE PLEAS A. Nolo Contendere and Alford Pleas: Nonsolutions B. False Pleas: The Solution CONCLUSION INTRODUCTION
Much has been made of an "innocence problem" in plea bargaining. (1) Even scholars who view plea bargaining as systemically positive nevertheless propose reforms to limit access only to the factually guilty. (2) But the conventional view is largely wrong. On balance, plea bargaining is a categorical good for many innocent defendants, particularly in low-stakes cases.
No doubt, punishment of the innocent is a tragedy and a failure. Yet, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, or trial--not at the point of plea bargaining. The relevant plea-bargaining question is only how bad the failure will be--how great the tragedy. From that understanding, the inescapable, if seemingly unsavory, ultimate conclusion is that many innocent defendants are better off in a world with plea bargaining than one without it.
For the typical innocent defendant in the typical case--which I will demonstrate is a recidivist facing petty charges--the best resolution is generally a quick plea in exchange for a light, bargained-for sentence. And such a plea is frequently available because prosecutors do not try to maximize sentence length in low-stakes cases. Moreover, defendants possess certain underappreciated bargaining advantages in these cases. Finally, even for innocent defendants facing more serious charges, plea bargaining may be, at a minimum, the manifestly least-bad option.
In making these claims, I do not wish to enter the larger debate over plea bargaining. Specifically, I do not address many of the numerous and weighty objections to the practice. (4) My position is far more modest: I seek only to demonstrate that the conventional criticism-that there is an innocence problem in plea bargaining--is off the mark. Whatever other negative commentary may justifiably be offered against plea bargaining, it makes little sense to lament bargained-for discounts that permit the innocent to end cases on defendant-optimal terms. Rather, these great discounts for innocent defendants are facets of plea bargaining that may recommend the practice-at least in low-stakes cases. As such, viable bargaining outlets should exist for the innocent.
It is hardly a new observation that guilty pleas may prove attractive to the innocent. (5) But I intend to do more. I intend to pinpoint which innocent defendants draw the most benefit from plea bargaining and in what types of cases. In doing so, I rely on well-developed literature concerning process costs and prosecutors' bargaining incentives, but I also bring a fresh perspective to the scholarship by focusing on two underappreciated aspects of plea bargaining for the innocent: (1) that innocent defendants are probably recidivists facing petty charges; and (2) that, even in the face of agency failure, defendants possess certain bargaining advantages over prosecutors in low-stakes cases. I then raise a novel challenge to the much-maligned quasi-available current channels for rational-choice pleas--specifically, equivocal and no-contest pleas. I fault these pleas not because--as the typical complaint goes--they facilitate guilty pleas for the innocent, but rather because they do not make these false pleas easy or equitable enough. Finally, I offer a practical proposal to reconceive of false pleas as legal fictions and to require defense lawyers to advise and assist innocent defendants who wish to mouth dishonest on-the-record words of guilt. These are my principal contributions. (6)
Much of the worry over an innocence problem in plea bargaining proceeds from misperceptions over (1) the characteristics of typical innocent defendants, (2) the types of cases they generally face, and (3) the level of due process they typically desire. First, most innocent defendants are probably recidivists. These repeat players are the principal target population of police activities and investigations. And, as such, they are more likely to be caught erroneously in miscast or overwide police nets. (7) As recidivists, they face unique burdens when challenging false charges but--perhaps counterintuitively--enjoy concurrent unique plea-bargaining benefits. On the burden side, they are more likely to be charged or indicted postarrest and less likely to have pending charges dismissed, even when evidence is weak. (8) Additionally, they are more likely to face pretrial detention and are less able to adequately fight their cases at trial. (9) On the benefits side, recidivists suffer less--if at all--from the corollary consequences of convictions. (10)
Second, most plea bargains terminate petty cases in exchange for trivial sentences, notwithstanding academic and popular over-attention to uncommon instances of high-stakes bartering over years in prison in high-profile cases. (11)
Third, the pretrial process is painful. Punishment does not begin with sentence. Many defendants--even the innocent--do not welcome a process that frequently constitutes most, if not all, of the punishment they will face. For the typical innocent recidivist defendant facing the typical petty charge, the more abbreviated the process, the less the punishment. (12)
In low-stakes cases there is only half-truth to the conventional perception of prosecutors as rational wealth maximizers whose chief plea-bargaining aims are to achieve the greatest possible conviction rates and sentence lengths. Specifically, prosecutors may try to maximize conviction rates. (13) But they do not aim principally--or even at all--to maximize sentence lengths where the charges are minor. Instead, prosecutors often provide bargain concessions that far exceed what is necessary to motivate pleas. (14)
Prosecutors make such lenient offers because they can. They enjoy little public or official scrutiny in low-stakes cases. In these cases, prosecutors are much more interested in reducing their own administrative costs while earning some type (any type) of undelayed conviction. The adversarial model breaks down, or at least becomes a secondary consideration to workgroup cooperative principles. For all involved, the best pleas are quick pleas. And quick pleas are most efficiently reached at low market prices, because--although prosecutors may abandon sentence maximization--defendants always remain sentence minimizers. (15) The threat that defendants might demur leads even self-interested defense attorneys and prosecutors to set prices low ex ante as the most efficient way to ensure that the largest number of defendants plead guilty with the least amount of hesitation. (16)
As stakes rise, however, plea bargaining comes to resemble more closely the orthodox ideal of adversarial gamesmanship: prosecutors more often yield only enough to purchase pleas and use overcharging to compel defendants' acceptance of high prices. In these serious cases, bargaining provides an escape only from the prohibitive risk of substantial trial penalties, not from trial processes that defendants might otherwise welcome. Bargaining may be rational here, but it creates no normative good. Yet, significantly, this overcharging criticism is an objection to bargaining and charging discretion generally. The problem affects all defendants; it is not exclusive to the innocent. (17)
If it is normatively appropriate for the innocent to plead guilty in low-stakes cases, and rational--albeit normatively problematic for reasons unrelated to guilt and innocence--for the innocent to plead guilty in high-stakes...