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?