Plea bargaining and the innocent defendant

Has the rise of overcriminalization and the ascendancy of plea bargaining heightened the risk that innocent defendants may plea guilty? Those questions were raised in a must-read article published in the Wall Street Journal this week ("Federal guilty pleas soar as plea bargains trump trials," Sept. 23) which explored the likelihood that significant numbers of innocent people are enticed to plea guilty to avoid harsh federal sentencing guidelines. From the story:

The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

This relentless growth in plea bargaining has sparked a backlash among lawyers, legal scholars and judges—evidenced by recent federal court decisions, including two from the Supreme Court. Weighing on many critics is the possibility illustrated by the Kassab case: that the innocent could feel pressured into pleading guilty.

One troubling factor is that, when cases are plea bargained, prosecutors aren't forced to actually prove their cases or turn over so-called Brady material. "Among the legal protections given up by a defendant when he pleads is the right to receive evidence from the prosecution that supports a claim of innocence. That means a person might plead guilty to a crime not knowing prosecutors are holding exculpatory evidence."

The Journal attributed the trend to mandatory sentencing regimes in the federal system (and their state-level counterparts) which have given prosecutors extraordinary leverage in negotiating pleas:

Behind the dominance of the plea bargain is the rapid growth in the number of federal criminal laws and the stiffening of sentences by Congress and the U.S. Sentencing Commission, a board created in the 1980s. After scandals at Enron and other companies in the early 2000s, for example, Congress increased the potential sentence for certain types of fraud to 20 years from five years.

Federal guidelines not only toughened punishments but also formalized a system to reward defendants who plead guilty by reducing sentences if they accept responsibility or cooperate with prosecutors, among other things. As part of plea deals, federal prosecutors often drop additional charges that could add years, or decades, to a sentence. Going to trial brings none of those benefits for the accused.

The article cited concerns expressed in:

two related decisions this year by the Supreme Court, which said defendants hadn't been adequately represented by their attorneys during the plea-bargaining process. Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote.

Justice Antonin Scalia dissented from the decisions but wrote that the system encourages a prosecutor to charge an individual with so many criminal counts that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense."

A sidebar to the story (not available to non-subscribers) cited research by a pair of academics, Lucian Dervan and Vanessa Edkins, to be published next year in an article titled "The Innocent Defendant's Dilemma."  They studied the behavior of students falsely accused of cheating on tests, finding that "more than half of the innocent participants were willing to falsely admit guilt in return for a benefit" of reduced consequences. Their analysis of the implications of that finding deserves exploration in greater detail.

Though today criminal justice practitioners consider the use of inducements via lighter sentences to secure plea bargains as commonplace, Dervan and Edikins describe how only recently have appellate courts accepted the practice:

Interestingly, early legal precedent regarding confessions prohibited the offering of any inducement to prompt the admission. 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.” 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.

According to Dervan and Edkins, "While corruption kept plea bargaining alive during the late nineteenth and early twentieth centuries, overcriminalization necessitated plea bargaining’s emergence into the mainstream of criminal procedure and its rise to dominance." The rise of overcriminalization they argue, particularly the Prohibition era, turned plea bargaining from a corrupt exercise practiced mainly in the system's shadows to the only practical means of handling prosecutors' massive caseloads. They cite research to say "federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total number of all pending federal prosecutions in 1914." Today, of course, prosecutions related to the drug war play a similar role, though the trend toward overcriminalization extends far beyond that realm.

Even so, "Though plea bargaining rates rose significantly in the early twentieth century, appellate courts were still reluctant to approve such deals when appealed." However, "By 1967, despite a continued rejection of plea bargaining by appellate courts, even the American Bar Association (“ABA”) was beginning to see the benefits of the institution." The US Supreme Court did not affix its official imprimatur on plea bargaining, though, until 1970 in a case styled Brady v. United States. In that landmark case, SCOTUS overturned past precedents to rule that:

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).

The Supreme Court surmised that innocent people would be unlikely to accept plea bargains and choose to vet the prosecution's evidence at trial. But Dervan and Edkins' research with students suggested, they argued that in real-life situations, innocent people don't behave that way:

Previous research has argued that plea bargaining’s innocence problem is minimal because defendants are risk-prone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent individuals are actually highly risk-averse.

Such conclusions directly call into question the modern justifications of plea bargaining by appellate courts, for essentially the same reasons the practice was disdained in the 18th and 19th centuries. Even in Brady v. United States, noted the authors, SCOTUS suggested that, "We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves." Dubbed "the Brady Safety-Valve," that caveat suggested the Supreme Court could reevaluate the constitutionality of plea bargains "if the persuasiveness of the offers are coercive and surpass a point at which they begin to have the potential to ensnarl an unacceptable number of innocent defendants." 

In light of their study involving students, Dervan and Edkins suggested that, "As is now evident from the study described herein, the Supreme Court was wrong to place such confidence in the ability of individuals to assert their right to trial in the face of grave choices." They concluded, "That the plea bargaining system may operate in a manner vastly different from that presumed by the Supreme Court in 1970 and has the potential to capture far more innocent defendants than previously predicted, means that the Brady Safety-Valve has failed and it is time for the Court to reevaluate the constitutionality of the institution with an eye towards the true power and resilience of the plea bargaining machine."