Natapoff: Add plea bargaining to canonical causes of wrongful convictions

Grits looks forward to Sasha Natapoff law review articles with the sort of anticipation which in high school accompanied the release of albums by my favorite bands. Regrettably, unlike those bands, legal scholars have crappy promoters and sometimes I'm late to the show. So Grits was delighted that Doug Berman pointed out her new article, "Negotiating Accuracy: DNA in the Age of Plea Bargaining," in which she declared that, "we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics." Yes, ma'am! Hear, hear!

Noting that, "Fourteen percent of the wrongful convictions listed in the National Registry of Exonerations are the result of a plea" bargain, she suggested the real proportion of false convictions based on pleas is much higher. After all, "it is easier to revisit a conviction where the defendant has maintained his or her innocence and there is a factual record that can be reinvestigated and legally challenged."

"Easier" is an understatement. What students at innocence clinics do with their time is review trial transcripts and evidence for problems or irregularities. No trial? No transcript, no evidence. Unless there's exculpatory DNA evidence sitting around in a lab somewhere, key witnesses recant, or someone else credibly confesses to the crime, there's no record to attack in plea-bargained cases, so there are few viable avenues for proving innocence claims.

Natapoff contends that, “the quest for DNA-like accuracy tempts us to forget that most criminal guilt is negotiated, not 'discovered.'” "In the world of trials and formal adjudication," she observed," accuracy matters a lot. In the plea bargaining universe, accuracy is negotiable and thus matters less. This latter point is on display in two bargaining arrangements that routinely lead to wrongful convictions: informants, where evidence is obtained by bargaining, and the misdemeanor assembly-line process where convictions are obtained by bargaining."

Brilliantly, she contends that, "we should understand the criminal deal itself as a primary source of wrongful conviction, precisely because it commodifies and trades away accuracy—even DNA’s—in exchange for other institutional values." Even so, "the bulk of the innocence movement’s proposed reforms are designed with the trial-oriented evidentiary model in mind." That's exactly right. (See a discussion of the limits of canonical innocence reforms in recommendations from the Innocence Project of Texas to the Timothy Cole Exoneration Review Commission, authored by your correspondent at his day job.) Plea bargaining, combined with the coercive nature of bail-based pretrial detention, contributes to "inaccurate" pleas, in Natapoff's parlance.

She grants that "plea bargaining is often inaccurate for complex, even sound reasons," often to the benefit of the defendant, and the article offers a good discussion of different brands of intentional inaccuracy in pleas. Even so, while fully acknowledging that "accuracy is not the system’s only foundational value," clearly "accuracy still matters profoundly" and "the innocence discourse is an important reminder not to let the cost-benefit instrumentalism of plea bargaining obscure the injustices of wrongful conviction."

These are just a few tasty excerpts, the whole thing is excellent, give it a read. And for those with holiday reading time on your hands, let me suggest that anyone interested in innocence, plea bargaining, or informants should take time perusing her full law-review oeuvre, which includes all sorts of excellent goodies. As far as Grits is concerned, Sasha's a rock star.