The Anti-Innocence Effect

Via Doug Berman, law professors Oren Gazal-Ayal and Avishalom Tor take a stab at addressing the theoretical problems with plea bargaining by what they call “the innocence effect.”

Many scholars argue that plea bargains should be curtailed because they facilitate wrongful convictions.  Others contend that plea offers can only benefit innocent defendants, by offering them an alternative to the risky trial, which may lead to a much harsher sentence. Yet even while drawing contradictory conclusion regarding this practice, both camps in the debate agree that plea bargains often lead innocents to plead guilty.  They simply argue about the normative implication of this result.

The decades-long plea bargaining debate is based on a combination of scholarly beliefs and theoretical models, with little systematic evidence to support either position.  The present article draws on a diverse set of empirical findings to reveal the innocence effect, whereby innocents are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial.  

The “thesis,” to the extent it can be called that, is that innocence has an impact on a person’s decision to accept a plea bargain.  And the sun rises in the morning.  More interesting is that the lawprofs argue that innocent defendants are singularly resistant to plea bargaining, such that the fears of innocent people being induced to plead guilty by sweet deals is exaggerated.

That innocent defendants, at least at the outset, resist pleading guilty is hardly worthy of a law review article or a really cool name like “the innocence effect.”  But the argument used to prove its existence is that the evidence against innocent defendants is inherently weaker than that against guilty defendants, because (duh) they’re innocent.  This is what comes from theoreticians:

Innocence, in this setting, plays only a minor role, if at all. True, one should hope that innocent defendants, on average, face weaker cases (i.e. a lower probability of conviction at trial). Yet, most weak cases are dismissed at earlier stages; the risk to innocent defendants is substantial mainly in the rare situations where the case against them is relatively strong. Moreover, according to the shadow of trial model, plea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement.

Admittedly, when the case is weak, the parties must rely on charge bargaining to make the necessary adjustment, in order to avoid judicial rejection of the agreed sentence. But it is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.

The reliance on evidence as the deciding factor, further exacerbated by the authors’ reliance on those subsequently found to be innocent, is that it ignores all the nice folks who are either innocent or overcharged who are never subsequently exonerated.  This, of course, can’t be in the world of the theoretical.  This reinforces the naive belief that it’s all about evidence, the argument that defendants perpetually make when confronted with the harsh reality of the courtroom.

The question confronting every defendant, whether innocent or guilty, is what are the chances of winning at trial.  The answer is controlled by a few factors, not all of which are savory.  One factor is whether their lawyer is capable of trying a case, which should come as no shock to anyone.  Another is whether the defendant has anything to offer to contradict the testimony against him.  Few do, regardless of whether they’re innocent or guilty, which should also come as no shock. 

The primary factor, which comes into play in the authors statistical analysis of the innocence effect, is the trial tax.  Is a defendant willing to roll the dice and risk the punishment likely to come after trial when he could cop out to less.  The authors argue that this concern, that innocent people will take this option, isn’t as serious as we all make it out to be.

What a load of crap.

I’ve defended innocent people.  I’ve defended guilty people.  The evidence is the same.  The outcome is the same, whether dismissal, conviction or acquittal.  And no scholar would be able to tell the difference.

Guilty people tend to be much easier to represent, as they understand what they’ve done, anticipated the possibility of being arrested and prosecuted, and tend to be far more prepared to deal with it.  They take calculated risks with far greater equanimity.  It’s a cost of doing business.

Innocent people bay at the moon.  It’s unfair.  It’s unjust.  And it changes nothing.

The evidence needed to convict a person need be no stronger than a cop on the stand saying the magic words, with that honest, I’m-here-to-protect-you, law enforcement look on his face, that assures conviction.  They rarely break down and cry when you catch them in a lie.  They just use one of the handful of excuses they keep at the ready for why they can’t remember every detail and sometimes make a mistake, which doesn’t change the fact that they saw what they saw and found what they found.  Why would they lie?

But of course, they do lie.  They lie about the guilty and innocent alike.  Sometimes it’s a big lie, but most of the time it’s little lies, enough to get past the minor hurdles. 

Innocent defendants, however, are all full of fight at the outset, but fade quickly.  They get tired of having the threat of gargantuan sentences hanging over their head, the pressure of thinking, every night, all night long, about what they did to God that he would punish them this way.  They think of their children without a parent for decades.  They think of all the people who tell them that no one ever wins. No one.

These are the innocents who don’t catch the break of making it onto the radar of law professors conducting an empirical study, because they look just like the guilty.  These are the anti-innocents, because they’ve pleaded guilty in the hope that they won’t die in prison.  And you will never know who they are, and you will manufacture empirical studies that will ignore them because their conviction is so mundane that it defies your simplistic expectation that evidence proves anything.

This isn’t to say that plea bargaining is a bad thing because it puts innocent defendants in prison in order to avoid the risk of trial.  It’s to say that theoreticians, scholars, can’t tell an innocent person from a guilty person any more than a cop, judge or jury. 

There’s no magic to this system. It treats everybody like dirt.  Got an “effect” for that?

8 thoughts on “The Anti-Innocence Effect

  1. Alex Bunin

    Everyday in America the following occurs:
    Lawyer: “They are offering you time-served.”
    Defendant: “I didn’t do it, but I want to get out today.”
    Innocent persons plead guilty all the time, mostly for minor crimes, but sometimes for serious crimes. Even minor crimes mean the person is now a criminal, is a potential suspect in other cases, and will suffer other serious consequences – not just “collateral” ones.

  2. SHG

    But that can’t be possible, since the evidence against innocent persons is weak and the Innocence Effect says they will go to trial, confront their weak evidence and win.  Don’t you read law reviews?

  3. uhclem

    As someone who took a plea deal on a fairly serious charge I have to say your words are right on the money. I met people on the inside who were also innocent and didn’t take a plea deal. They asked me how I could plead guilty (albeit Alford) to something I didn’t do.
    They are still there…

  4. Audrey

    Here I go baying at the moon. I took the trial but didn’t have the money to afford decent representation. My savings and my family’s savings were exasperated within the first year. It took four years to come to trial. The men who falsely accused me knew they could out-resource me quickly. I believe it is a money issue, the best defense cost a great deal of money. I did have the experience of manufacured evidence and a lieing detective on the stand also. I believe good representation could have exposed that for what it was….at least raised a reasonable doubt.

    While incarcerated I met several other innocents; a few who went the trial route but most were overwhelmed by the system and were convinced they didn’t have a chance. I listened carefully to their stories and asked many questions, comparing with my own. You are so right, those people will never be seen in the studies or in the media. They waived their appeal rights and are too afraid to speak up. Afraid of retaliation by a system that is much more powerful than them. A system that threw them in the BIG HOUSE as an innocent in the first place would certainly manufacture a reason to do it again.

  5. Andrew

    So, a few people can afford really top-notch criminal defense attorneys. Are they the only ones with any chance? I’m sure public defenders try, but how much attention can they really pay to a particular client? Would a public defender be able to secure an acquittal in the face of false testimony and/or “evidence?” I’m sure it depends on the situation, and it’s better than no representation.

    But, then there are those who fall in the middle. Too much money for a public defender but too little to purchase an adequate defense. If I was ever charged with a crime, I would fall in this category. Thinking about it scares me a little. I’ve had the experience of facing false evidence in court, though it was in a civil case with just a couple grand on the line. I was able to beat it pro se, but I was lucky — and I certainly wasn’t in jail while trying to do so, nor was I just deprived of a huge chunk of money due to bail.

    So, our system does not correctly determine innocence. What’s the fix?

  6. Audrey

    Perhaps, doing away with immunity is a start. For the few officers, detectives and prosecutors who don’t adhere to truth and justice maybe if they were held accountable for their lies and misdeeds, given a substantial consequence (i.e. disbarment, termination), then that would be a deterrent.

    If public defenders were held to a higher standard (even held to the hypocritic oath)and paid by an authority other than the state that is prosecuting same defendent, then there is a chance their good performance could be rewarded. Who could pay them? I know the Federal gov’t can’t take on another obligation, but there must be a way to take the conflict of interest out of the equation.

    Those who fall in the middle, that is too much money for a public defender and too little to pay a fortune for defense…if they stay in the system long enough, like I did, eventually they will be bankrupted after a few continuances and then will fall back to indigent status and have to take up with a court appointed attorney or public defender.

    What I don’t quite understand is how the State of Florida (thus taxpayers) paid almost $1 Million to the defense attorneys in the Casey Anthony trial. Had she been in Texas, the state might have paid $2,500 for her defense and she would be on death row right now.

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