Doug Berman at Sentencing Law and Policy picks up on an article entitled Reducing Guilty Pleas Through Exoneree Compensations. The abstract provides:
A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals’ plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals’ incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.
At first blush, this appeared to be a good thing, a worthy idea that would serve to benefit the wrongfully convicted. After all, as much as people may think criminals deserve life plus cancer, few believe that the innocent, coerced into accepting plea bargains for fear of conviction or sentence despite their innocence, should be convicted. They are the system’s mistakes, and shouldn’t those who suffer from such errors be compensated?
But upon further reflection, this notion becomes increasingly disturbing. It suggests that we be less concerned, and perhaps more coercive, in obtaining guilty pleas from innocent defendants because they won’t be hurt as badly by being wrongfully convicted and imprisoned, and will be better compensated when the system magically corrects itself.
This is a dangerous path to go down.
Turning to the back end first, few people would elect to be wrongfully convicted in the hope of “hitting the lottery” at the back end. Most would prefer to enjoy whatever life they have outside of prison, without regard to how much the compensation might be later.
But then, what are the chances of a wrongfully convicted innocent who has pleaded guilty, the “innocent-plea,” later being exonerated? Slim? Not even that. Barely a titch above none. That’s the nature of guilty pleas, that they end the inquiry. Sure, there is the occasional spectacular post plea vindication, but then there are also failures. Tons of them.
The tradeoff appears to be the combination of increased back-end compensation with a small increase in front-end incentives to take a plea. In other words, make the plea deal sweeter up front and the damages bigger in the rear.
Plea bargaining is a nightmare concept; the only thing worse is the absence of plea bargaining. That it produces innocent-pleas has never been a serious question, but for those who believe in unicorns. The reaction is that it’s the price we pay to keep the system grinding. It’s an unacceptable response, though all the players in the system, defense lawyers included, are party to the sham.
Of course, defense lawyers justify pushing the innocent to plead guilty because of the difficulty of prevailing at trial. Better for an innocent to serve a shorter sentence than a longer one, if not serving a sentence isn’t an option. It’s not one of our best arguments.
Why then, a theorist might wonder, would it not be beneficial to improve the incentives to plead guilty by reducing the sentence for a guilty plea? The innocent would serve even less time (as would the guilty, mind you), and if they’re going to plead guilty anyway, this at least makes it more palatable.
It’s as good an argument as the “plead guilty even though you’re innocent because nobody wins at trial” argument, except the latter is at least purely pragmatic, whereas the former is proffered as a theory that should be embraced as improving the system. That goes a step (or ten) too far.
Much as I can appreciate the author’s salutary goals, any theory that promotes the conviction of the innocent, whether by plea or trial, digs us increasingly deeper in the hole of systemic failure. The goal is to prevent the conviction of the innocent, not make their time more palatable. This idea would enhance the likelihood of innocent pleas, of people copping out because they see no better option. It’s a concession of failure, that the system can and will fail, and we should therefore abandon all hope and stop trying.
Cynical people will read this and say, well yeah, it’s done. The system fails and will continue to fail. The system will never get better because prosecutors, cops, judges just don’t see a problem with convicting the innocent. And let’s face it, defense lawyers. You haven’t got the juice to make it better. The public hates you. Identitarian politics continues to drag it down, imploring the public not to care about the conviction of innocents as long as no guilty person gets away. The people just don’t care.
If this is true, then I’m wrong. I just don’t accept the premise that it cannot be better. I’m just not willing to give up on the innocents and concede that there is no hope. And if I have to throw a few elbows in the process of trying to defend them, even if it pisses off some who would prefer lawyers make their jobs easier, then that’s what will have to happen. Giving up just isn’t an option.
SHG,
It is worth noting that the study referred to in your post makes a huge and critical assumption that relies on virtually no data: “The mechanisms that we study rely on the probability of exoneration being
greater for innocent defendants than guilty ones.” There is some research on this subject, but it is very scant.
If this assumption is untrue and “exoneration” is in a significant number of cases unrelated to factual guilt, then all the math is flawed and the proposal–pay guilty people ’cause they got lucky and beat the system–is horrible public policy. In my limited experience, those that are “exonerated” are very roughly as likely to be factually guilty as they are to be factually innocent. I appreciate that this is a difficult methodological problem for the professors because ultimately determining factual innocence in the exoneration process is very difficult save for a very few cases that rely on umimpeachable scientific evidence, but that’s not my problem.
The foregoing having been said, this is a geek’s response to some geeks’ proposal. Your point–don’t substitute money as a salve and a substitute to improving the process–is the important one.
All the best.
RGK
The assumption is not only flawed from the perspective of guilty v. innocent, but from the perspective that the ~3% reversal rate (less those remanded for trial), are exonerated, as opposed to other options such as grant of suppression, speedy trial, etc.
The academic view tends to focus heavily on the post-conviction/appellate side of the equation. It rarely occurs to them what it means for an innocent person to sit in prison for the years before reaching the chance to play roulette, or how the best (if hardly good) chance at winning was before or at trial. Trial courts are ugly and nasty, while appeals are clean and sanitary. They make for much better case studies.
Unfortunately, the main problem is that such a proposal would ultimately result in the government bearing the cost of wrongful convictions, rather than the individuals who, as in many of the exoneration cases over the past few years, engaged in prosecutorial negligence, recklessness or intentional misconduct, whether in committing Brady violations, tendering bogus “expert” testimony, threatening witnesses with prosecution if they do not tell the story the prosecutors want, refusing to test DNA, or what-have-you. Paying those who are wrongfully convicted, while appropriate from the point of view of those on the receiving end, seems like it may serve more to “paper over” the underlying problems that led to the wrongful convictions.
As long as prosecutors gain “cred” for being tough-on-crime and others bear the cost of compensating those rare few wrongfully convicted who are successfully exonerated, the malfeasors retain every incentive to maximize conviction rates, knowing that they do so with virtually no risk of meaningful consequence. The problem with this solution is that it does nothing to address the principal-agent problem that bedevils the current system.
Would it be okay with you if we called it “one of the problems,” rather than “the main problem,” so I don’t have to disagree with you that it’s not the “main” problem, even though it’s one of the problems?
Conceded.
The idea discussed is one of the stupider ideas I’ve seen on the problem with plea bargaining. Surely it was written by someone with no practical experience as a criminal defense lawyer, right?
I didn’t check their CVs, but one can only hope.
Mrs. Harris, very good observation. Meet Professor Dumb & Professor Dumber.
Murat C. Mungan
Florida State University – College of Law
Jonathan Klick
University of Pennsylvania Law School; Erasmus School of Law; PERC – Property and Environment Research Center
*In order for it (the game) to get better and less stupid, first, someone has to take charge and lead the CDLs out of the valley of self destruction and put Defense back into the niche (front & center) that’s been infiltrated by the pleafense crowd & those wishing to fill the void in their Divorce shoppes. Those charged with defending the accused (Guilty or Not) , (hired & appointed) must be mandatorially retrained / rementored via: Continuing Educational Courses that includes – Consultations & Pleas 101. Both in the Office & the Box, with contracts spelling out in writing, any & all clients pleading Not Guilty ‘must’ take it all the way to a jury trial verdict (Initial Here), with absolutely no opportunity to recant / retract while under contract (Initial Here). Not Guilty pleas will receive full representation including: automatic investigation, pre-trial & trial motions, voir dire and a complete jury trial to verdict (Initial Here). One ‘Plea’ per client, per case (Initial Here).
Anything else, leaves the courtrooms wide open and subject to being co-opted by Fake CDLs (Pleafense) & the Real but lazy ones to play no-jury-trial-for-you games with the – Guilty and Not Guilty alike (despite filing multiple Ready for Trial notices & picking juries). I know, too easy and requires everyone to actually work in addition to showing your work when required vs. simply shredding it all in efforts to hide from one’s past. It’s the best an ‘Unexoneratable’ could come up with while standing on that slimmey Rigged slope & trying not to cuss out the two dumb-assess. Thanks.