The innocent defendant's dilemma: an innovative empirical study of plea bargaining's innocence problem.

• Author: Dervan, Lucian E.

TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORICAL RISE OF PLEA BARGAINING AND ITS INNOCENCE PROBLEM A. The Rise of Plea Bargaining B. Plea Bargaining's Innocence Debate III. LABORATORY EVIDENCE OF PLEA BARGAINING'S INNOCENCE PROBLEM A. Study Methodology--Confronting a Devil's Bargain B. Study Results--The Innocent Defendant's Dilemma Exposed 1. Pleading Rates for Guilty and Innocent Students 2. The Impact of Sentencing Differentials IV. THE CONSTITUTIONALITY OF THE INNOCENT DEFENDANT'S DILEMMA I. INTRODUCTION

In 1989, Ada JoAnn Taylor sat quietly in a nondescript chair contemplating her choices. (1) On a cold February evening four years earlier, a sixty-eight-year-old woman was brutally victimized in Beatrice, Nebraska. (2) Police were now convinced that Taylor and five others were responsible for the woman's death. (3) The options for Taylor were stark. (4) If she pleaded guilty and cooperated with prosecutors, she would be rewarded with a sentence of ten to forty years in prison. (5) If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. (6)

Over a thousand miles away in Florida, and more than twenty years later, a college student sat nervously in a classroom chair contemplating her options. (7) Just moments before, a graduate student had accused her of cheating on a logic test being administered as part of a psychological study. The young student was offered two choices. If she admitted her offense and saved the university the time and expense of proceeding with a trial before the Academic Review Board, she would simply lose her right to compensation for participating in the study. If, however, she proceeded to the review board and lost, she would lose her compensation, her faculty advisor would be informed, and she would be forced to enroll in an ethics course.

In Beatrice, Nebraska, the choice for Taylor was difficult, but the incentives to admit guilt were enticing. (8) A sentence of ten to forty years in prison meant she would return home one day and salvage at least a portion of her life. (9) The alternative, a lifetime behind bars, was grim by comparison. (10) After contemplating the options, Taylor pleaded guilty to aiding and abetting second-degree murder. (11) Twenty years later, the college student made a similar calculation. (12) While the loss of compensation for participating in the study was a significant punishment, it was certainly better than being forced to enroll in a time-consuming ethics course. (13) Just as Taylor had decided to control her destiny and accept the certainty of the lighter alternative, the college student admitted that she had knowingly cheated on the test. (14)

That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses of which they had been accused. (15) After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants in her case were involved in the murder. (16) As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. (17) The study, conducted by the authors, involving dozens of college students and taking place over several months, not only recreated the innocent defendant's dilemma experienced by Taylor, but also revealed that plea bargaining's innocence problem is not isolated to an obscure and rare set of cases. (18) Strikingly, the study demonstrated that more than half of the innocent participants were willing to falsely admit guilt in return for a perceived benefit. (19) This finding brings new insights to the long-standing debate regarding the possible extent of plea bargaining's innocence problem and ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance that it would not be used to induce innocent defendants to falsely admit guilt. (20)

This Article begins in Part II by examining the history of plea bargaining in the United States, including an examination of the current debate regarding the prevalence of plea bargaining's innocence problem. (21) In Part III, this Article discusses the psychological study of plea bargaining conducted by the authors. (22) This Part reviews the methodology and results of the study. (23) Finally, Part III analyzes the constitutional limits placed on plea bargaining by the Supreme Court in its landmark 1970 decision, Brady v. United States. (24) In this decision, the Supreme Court stated that plea bargaining was a tool for use only when the evidence of guilt was overwhelming and the defendant might benefit from the opportunity to bargain. (25) According to the Court, if it became evident that plea bargaining was being used more broadly to create incentives for questionably guilty defendants to "falsely condemn themselves," the entire institution of plea bargaining and its constitutionality would require reexamination. (26) Perhaps, as a result of this new study, a time for such reevaluation has arrived.

2. THE HISTORICAL RISE OF PLEA BARGAINING AND ITS INNOCENCE PROBLEM

   On December 23, 1990, a twenty-one-year-old woman was robbed and sexually assaulted by an unknown assailant in New Jersey. (27) Three days after the attack, and again a month later, the victim identified John Dixon as the perpetrator from a photo array. (28) Dixon was arrested on January 18, 1991, and ventured down a road familiar to criminal defendants in the United States. (29) Threatened by prosecutors with a higher prison sentence if he failed to cooperate and confess to his alleged crimes, Dixon pleaded guilty to sexual assault, kidnapping, robbery, and unlawful possession of a weapon. (30) He received a sentence of forty-five years in prison. (31) Ten years later, however, Dixon was released from prison after DNA evidence established that he could not have been the perpetrator of the crime. (32) While the story of an innocent man pleading guilty and serving a decade in prison before exoneration is a tragedy, perhaps it should not be surprising given the prominence and power of plea bargaining in today's criminal justice system. (33)

   Plea bargaining, however, was not always such a dominant force in the United States. (34) In fact, when appellate courts first began to see an influx of such bargains around the time of the American Civil War, most struck down the deals as unconstitutional. (35) Despite these early judicial rebukes, plea bargaining continued to linger in the shadows as a tool of corruption. (36) Then, in response to growing pressures on American courts due to overcriminalization in the early twentieth century, plea bargaining began a spectacular rise to power. (37) That today almost 97% of convictions in the federal system result from pleas of guilt, such as John Dixon's in New Jersey in 1991, is both a testament to the institution's resilience and a caveat about its power of persuasion. (38)

   1. THE RISE OF PLEA BARGAINING

      While most discussions regarding the rise of plea bargaining begin in the late nineteenth century, the full history of plea bargaining dates back hundreds of years to the advent of confession law. (39) As Professor Albert Alschuler noted, "[T]he legal phenomenon that we call a guilty plea has existed for more than eight centuries ... [as] a 'confession."' (40) Interestingly, early legal precedent regarding confessions prohibited the offering of any inducement to prompt the admission. (41) As an example, in the 1783 case of Rex v. Warickshall, an English court stated, "[A] confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape ... that no credit ought to be given to it." (42) While plea bargaining as it exists today relies upon the use of incentives, common law prohibitions on such inducements persisted until well into the twentieth century. (43)

      The first influx of plea-bargaining cases at the appellate level in the United States occurred shortly after the Civil War. (44) Relying on past confession precedent prohibiting the offering of incentives in return for admissions of guilt, various courts summarily rejected these bargains and permitted the defendants to withdraw their statements. (45) These early American appellate decisions, however, did not prevent plea bargaining from continuing to operate in the shadows. (46) Plea bargains continued to be used during this period, despite strong precedential condemnation, at least in part as a tool of corruption. (47) As an example, and as Professor Alschuler has previously noted, there are documented accounts that by 1914 a defense attorney in New York would "stand out on the street in front of the Night Court and dicker away sentences in this form: $300 for ten days, $200 for twenty days, $150 for thirty days." (48) Such bargains were not limited to New York. (49) One commentator in 1928 discussed the use of "fixers," who negotiated bargains between the government and the defense in Chicago, Illinois:

      This sort of person is an abomination and it is a serious indictment against our system of criminal administration that such a leech not only can exist but thrive. The "fixer" is just what the word indicates. As to qualifications, he has none, except that he may be a person of some small political influence. (50) The use of plea bargaining by such "fixers" ensured that the practice would survive despite judicial repudiation, though a later phenomenon ultimately brought it out of the shadows. (51)

      While corruption kept plea bargaining alive during the late nineteenth and early twentieth centuries, overcriminalization necessitated plea bargaining's emergence into mainstream criminal procedure and its rise to dominance. (52) According to one analysis of individuals arrested in Chicago in...