Why the Innocent Plead Guilty & What We Should Do About It

“I saw the inner workings and the politics that go into prosecution and law enforcement, and how things actually get done. I saw the conversations that judges have with prosecutors; I saw the conversations that prosecutors have with cops; I saw the political things that go into the prosecution of crime. From a personal standpoint, it corroborated what I always knew about the system, which is that it’s innately flawed.”

A former NY Prosecutor with the Brooklyn District Attorney’s Office

Judge Jed Rakoff, a federal judge at the US District Court for the Southern District of New York, wrote a fantastic article in November 2014 for The New York Review of Books entitled “Why Innocent People Plead Guilty“. Shortly after, he provided an interview about the topic to AlterNet, an online magazine. In it, he discussed how federal criminal defendants accept plea bargains 97% of the time and on average state criminal defendants accept them 94% of the time. The AlterNet article points out: “Of the 1476 exonerations tracked by the University of Michigan Law School’s National Registry of Exonerations since 1989, 13 percent of innocent defendants provided false confessions.” See http://www.alternet.org/civil-liberties/why-innocent-people-plead-guilty-and-often-serve-years-prison-crime-they-didnt.

When asked why this problem exists, Judge Rakoff states: “Because the cases are resolved in negotiations between the prosecutor and the defense counsel, in which the prosecutor holds most of the power, the criminal justice system has become one-sided. This is a problem because the negotiations are secret and not subject to meaningful judicial review, the imbalance in negotiating power leads to over-incarceration (with 2.2 million Americans presently imprisoned), and in some cases, innocent people plead guilty to escape the high risks attendant on going to trial in an era of mandatory minimum sentences and severe sentencing guidelines.” Id.

In Judge Rakoff’s article for The New York Review of Books, he states: “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.” See http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/.

The problem is graven when 20,000 persons or more are wrongfully imprisoned in this country, and when Due Process rights to a fair and speedy trial are infringed by the plea bargain system.

The Judge further states in the AlterNet interview: “The average sentence for defendants who go to trial and are convicted is three times the average sentence for similar defendants who plead guilty. A defendant who is actually innocent but who was involved in suspicious circumstances may decide to “reduce his risk” by pleading guilty to a lesser offense; or the defendant, especially if young, uneducated or of low intelligence, may simply not be able to face the stress of a trial where, if convicted, he will face many years in prison.” See http://www.alternet.org/civil-liberties/why-innocent-people-plead-guilty-and-often-serve-years-prison-crime-they-didnt.

Of course, plenty of wealthy, well educated, and intelligent criminal defendants may similarly seek to “reduce the risk” by pleading guilty when they are actually innocent.

Thus the problems facing criminal defendants dictate the solutions:

1. We should have legal insurance, which like health insurance, would cover all costs of attorney representation and allow us to pick our providers. This way, everyone would have access to attorney representation.

2. Prosecutors should be dis-incentivized from bringing weighty charges to incarcerate and otherwise punish criminal defendants, who are supposed to be innocent until proven guilty. Prosecutors’ conviction rates should not be tied to federal, state, or county funding or salary bonuses. They are public servants performing a crucial job that requires fairness at every step of the way. When financial bonuses and funding are tied to conviction rates, clearly the ethics of their work gets muddied. There should be no tracking of such conviction rates and no rewarding of the same.

3. The wall between judges and prosecutors should be far more defined. The same prosecutors are in the same judge’s court every day, and they start to form collegial relationships, especially when they make small talk, know about each other’s lives, and spend time talking shop in the judge’s chambers. As it stands, prosecutors seem more like court-room employees rather than representatives of a public entity that are supposed to be entirely independent and sequestered from any relationship with the judge.

4. A judge should not have her worth determined by how “hard on crime” she is. There should be no tracking of such statistics to determine how many people a judge sends to jail and for how long. Republicans and Democrats alike seek to gather support by touting how hard they are on crime, and they like to appoint judges with records speaking to this quality. This creates a punitive and biased system rather than a system dedicated to a fair trial and ferreting out the truth.

5. We need to get rid of mandatory minimum sentencing rules and sentencing guidelines for judges which work to take away a judge’s ability to consider the offense and dictate a proper punishment. A judge who uses her discretion to depart from minimum sentences and sentencing guidelines by meting out less harsh punishments will be seen as being soft on crime, and absent rarified political connections and a fantastic reputation, that judge simply won’t last very long on the bench.

6. We need a system of supervision and enforcement to make sure that judges and prosecutors are actually forced to read the defendant’s pleadings and all exculpatory evidence, as they have a habit of skimming or ignoring so much of this evidence, argumentation, and other documents because they either have too much to do, are jaded, are myopically focused on punishment, and/or are lazy.

7. We need pre-charging evaluation of a case by a neutral, third-party judge who will similarly be required to fully read and consider all the case facts and who will have the power to permit or deny the charges that the prosecutor wants to bring, thereby acting to keep the prosecution honest and to provide some pre-charging analysis of the case’s strength — analysis that even the defendant may find useful.

Absent these changes, most criminal defense attorneys simply seem to jump to urging their clients to accept plea bargains — as Judge Rakoff states takes place between 94% and 97% of the time. That kind of lawyering is far from what we expect of a criminal defense attorney. We don’t want a lawyer to simply hold the accused’s hand and guide her from charging to sentencing to execution. We need and should demand an attorney who will fight for us, the ability to afford such an attorney, and a system that is fair and unbiased rather than rigged to defeat our Due Process rights from beginning to end.

True, courts and prosecutors’ offices are cash-strapped, and this is the excuse that is oft-touted for things being as they are. At this rate, we can only expect things to get worse where one day a criminal defendant will be expected to even pay tens of thousands of dollars for the “privilege” of having a criminal trial in the first place: believe it or not, this actually happens already in rarefied administrative courts. Imagine how persuaded a criminal defendant would be to accept a plea bargain in such circumstances, innocent or not! Is this Due Process at work?

Similarly in California civil courts often civil litigants have to now pay to have a court reporter present, where a few years ago this was a service provided by the courts themselves to ensure equal access to court transcripts.

We’re well on our way to doom, and let us hope it doesn’t take a Bastille-sized revolution to stop it all.

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Related Report:

Last Week Tonight‘s report on Public Defenders

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