Mike Huemer’s new Justice before the Law is predictably excellent. I’ll eventually discuss it in greater depth, but for now I’ll focus on Huemer’s critique of plea bargaining. The heart of the critique is that plea bargaining is coerced confession:
It is universally agreed in legal theory that coerced confessions are unacceptable. The main reason is that to accept coerced confessions would conflict with the central purpose of the court system… Coerced confessions do not establish the truth, nor do they promote justice, since the innocent can be coerced to confess as well as the guilty.
Now suppose that you’re innocent, and the prosecutor offers you this deal: “Plead guilty to get a sentence of 5 years in prison. Or go to trial, and get 15 years with 90% probability.” What are the odds that you’ll take the deal despite your innocence? Very high indeed – and Huemer points out that this is a realistic scenario:
In the actual status quo, defendants, in return for pleading guilty, are commonly offered sentences one third as severe as they could expect if they were convicted at trial. Standard rational choice theory dictates that in such a situation, a rational defendant accepts the plea bargain as long as his probability of being convicted at trial is greater than one third.13 Imagine, then, the spectacle of a defense attorney advising his client that, since he is “only” 60% likely to be acquitted at trial, it is in his interests to plead guilty. Or imagine a prosecutor deciding that, since the evidence he has gives him about a 35% chance of convicting a suspect at trial, it is worth going ahead and filing charges. Something has gone very wrong in a justice system in which those would be correct calculations. Surely a defendant who would probably be acquitted should not be given incentives sufficient to make it rational to plead guilty.
Even worse:
Prosecutors have enormous control over this factor and can and do adjust it in individual cases to take account of the strength of the case against the defendant. A prosecutor thus has a good chance of extracting a confession from a rational defendant given almost any nonzero probability of obtaining a conviction at trial. For instance, if there is just a 10% chance of convicting the defendant at trial (more precisely, if the defense believes there is a 10% chance), the prosecutor need only adjust his offer to ensure that the expected punishment if the defendant goes to trial and is convicted is more than ten times greater than the punishment offered in the plea agreement.
Moreover:
Experimental evidence confirms that innocent people can be induced to admit to wrongdoing. In one study, students were accused of cheating and were encouraged, through offers analogous to plea bargains, to admit their guilt. The study created conditions in which some students actually cheated, while others were innocent. The researchers found that actually guilty students were more willing to admit their guilt in exchange for leniency (89%), but that the majority of innocent students (56%) would falsely condemn themselves in conditions analogous to those of defendants in the criminal justice system.
After reading Huemer’s critique, I realized that our plea bargaining system is epistemically inferior to extracting confessions using what I call “thoughtful torture.”
Yes, “people will confess anything under torture.” Torture’s most thoughtful defenders, however, have long insisted that the real point of torture is to get suspects to confess things they couldn’t know unless they were guilty. Torturing someone to confess, “I did it!” shows nothing. Torturing someone to show you where the missing body is buried, in contrast, reveals guilt, or at least complicity.
Both plea bargaining and thoughtful torture unjustly punish the innocent. Unlike thoughtful torture, however, plea bargaining doesn’t seriously try to unearth the truth. Sure, you could give novel details when you plead guilty to a crime, but normally you merely need to parrot the prosecutor’s preferred narrative of the crime.
Huemer’s main suggestion for reforming plea bargaining is to drastically reduce the difference between the sentence if convicted and the sentence if you plead guilty:
The most serious problem with plea bargaining as currently practiced is that it creates incentives sufficient to induce rational defendants to plead guilty even if they are innocent and would probably be acquitted in a trial. In such a system, a defendant’s willingness to plead guilty does not provide strong evidence of his guilt; a court therefore cannot proceed to punish a defendant on that basis without violating its central duty to pursue justice in the case. This problem is mitigated by a sufficiently tight constraint on the trial penalty. A 20% trial penalty is unlikely to induce an innocent person to plead guilty.
My alternative reform, in contrast, is that plea bargains should only be accepted if the accused reveals novel hard evidence of their own guilt. If they know something they couldn’t have known unless they were guilty, or at least complicit, they can bargain for a reduced sentence. Otherwise, no deals.
Wouldn’t this merely amplify the problem of mass incarceration? The opposite is true. Right now, prosecutors only take 3% of cases to trial. They handle the other 97% with plea bargaining. Under my rule, prosecutors would have to take most cases to trial in order to secure a punishment. And since they lack the resources to conduct vastly more trials, prosecutors would wind up dropping vast numbers of weak and low-priority cases. For the individual criminal, plea bargaining is a way to avoid a harsh sentence. For the criminal justice system, however, plea bargaining is a way to make harsh sentences the norm – for innocent and guilty alike.
READER COMMENTS
Luke
Nov 3 2021 at 12:39pm
Giving people more options generally makes them better off. The ability to plea bargain is a help to the defendant – not a hindrance.
The issue is (1) overcriminalization to the point that one act could be a violation of five different laws, (2) absurdly high potential sentences for each crime, and (3) criminalization of victimless crimes.
On the prospect of no one plea bargaining, it’s a prisoner’s dilemma. If no one plea bargained then most would walk free. The problem is getting everyone to cooperate.
Matthias
Nov 4 2021 at 6:28am
Game Theory, like the prisoner’s dilemma you mention, has plenty of examples of people being better off with fewer options.
Eg in the standard prisoners dilemma, if both parties could precommit themselves mutually to cooperate, they would be better off.
Or more clear cut, because it requires only one party to remove options:
In the game of ‘chicken’ whoever can first remove their option to swerve, wins.
John hare
Nov 3 2021 at 1:58pm
By making the prosecution’s job more difficult and lowering their conviction rate and convictions on record, you would get a tremendous amount of pushback on trying to implement anything like this.
Grant Gould
Nov 3 2021 at 2:54pm
Given the notable unwillingness of prosecutors to turn over exculpatory evidence to defendants, I would extend your proposal to also allow each defendant to thoughtfully torture the prosecutor for an equal amount of time.
Aaron
Nov 3 2021 at 4:56pm
The underlying assumption both you and Huemer are making is that there is a significant chance for an innocent person to be convicted under our criminal justice system. I am not in the weeds on this issue so correct me if I am wrong, but from my perspective the criminal justice system is heavily stacked in favor of the defendant. Even if you have a crappy public defender it seems really tough for the state to convict an innocent person at trial; it’s much more likely for a guilty person to be acquitted.
So when Huemer talks about someone with a 35% chance of being convicted at trial, I’d guess that such a person is almost certainly guilty. And if I’m wrong about all of this then the real problem is that it’s too easy to be convicted at trial, and the solution is to make trials longer, more deliberate, and even more expensive – thereby making plea deals more essential to ever getting anything done.
Bryan cites it as a feature that low-level crimes will not be prosecuted. As a resident of San Francisco, I can tell you that not prosecuting low-level crimes is our de facto policy, and as a result people like shoplifters and auto burglars can operate with near impunity. Believe me that this is not something you want in your city.
Ghatanathoah
Nov 3 2021 at 11:11pm
Aaron, I thought it was fairly common knowledge that the American criminal justice system is notoriously corrupt, and that many prosecutors and police care more about making sure someone, anyone goes to jail than making sure the right person does. There are tons of stories in the news about people being exonerated when new evidence is uncovered. I recall reading a story a few years ago about a criminologist who was hugely popular and consulted by cops all over the state because he just rubber stamped everything they said.
Joel Pollen
Nov 10 2021 at 12:39am
You have to be really careful with that kind of argument. A bunch of stories in the news are hardly representative. Thieves going to jail for theft is much less newsworthy than innocent people going to jail for theft.
You’ve also got to be very careful with personal anecdotes and first-hand experience, but I would argue (and I think Bryan has argued elsewhere) that the sum total of one person’s experience is probably more representative than the news headlines. I’ve known several people who were charged with felonies. I have almost no doubt of the guilt of any of them, but it was often very hard for the prosecution to convict these people. I’ve known one person who definitely committed felonies to end up being released because they were able to find a technical problem with the prosecution’s case, even though anybody with common sense could see that the person was guilty, and in private conversation the person would readily admit to their guilt.
I would be very surprised to see credible evidence that the American criminal justice system is significantly more corrupt than most criminal justice systems in the world, with possible exceptions for Western Europe or a few other places.
As other people have pointed out, many, many things are illegal in this country. Tens of millions of people consume illegal drugs on a daily basis, and a great many of them clog American courts. You can’t tell me with a straight face that more than a pittance of people accused of dealing marijuana are actually innocent. If the police want to arrest pot dealers, there’s no shortage of them. It shouldn’t be hard to find real, guilty ones. The problem with the criminal justice system isn’t that we’re convicting innocent people, it’s that were finding people guilty of things that shouldn’t be crimes.
robc
Nov 4 2021 at 10:22am
If this were true, the Innocence Project wouldn’t exist.
Anonymous
Nov 4 2021 at 12:54pm
I disagree
Joel Pollen
Nov 10 2021 at 12:54am
I’m not sure that the kind of crimes the Innocence project works on I really representative of the typical criminal in the United States.
For violent crimes like murder and rape, I think the police are under a lot of pressure to arrest someone so that they can keep their clearance rate high. For less serious but more common crimes like drug offenses, domestic abuse, brawling, and petty theft, I suspect they face much less pressure to arrest, and may only choose to arrest and charge people when they are highly confident that those people are guilty.
For drug crimes, for instance, way, way more people violate the law than could ever be arrested, so the criminal justice system probably focuses on the worst offenders and/or the people they can easily convict.
AMT
Nov 3 2021 at 7:17pm
I’m not sure if he is saying the rules we have are bad, or prosecutors simply are not following them, but if he is saying the rules are bad, what about what the American Bar Association has been providing as model ethical rules for years?:
https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/
e.g.
I know these are model rules for states to use as templates and model their own rules on, so they are not binding, but I know that the model professional responsibility rules set forth by the ABA have been used as templates to at least some degree by essentially all states. But you’d have to analyze how different state rules for prosecutors vary and how much more lax they are than this.
Because the hypothetical of a prosecutor pressing charges when the probability of a guilty verdict at trial at 10% is absolutely impossible, and actually at the far opposite end of the spectrum, if a prosecutor is operating anywhere close to these rules.
I would think the issue of plea bargaining is probably far more impacted by limited resources of the criminal justice system to try any more cases than they already are, than it is malicious prosecutors trying cases on terrible evidence. Just because they are offering plea bargains at a fraction of the sentence the defendant might receive at trial might very well just mean the prosecutor needs to drop the “price” to try to achieve justice, because they literally cannot try anywhere close to the number of cases they otherwise would need to. Perhaps a sizable number of cases are predicated on weak evidence, but maybe a huge portion of the 97% that plead out would still result in guilty verdicts and we just don’t have the resources to try them. So if that is true, the defendants are not coerced into pleading, so much as lucky that the system is too overburdened to take it to trial and give them the larger punishment. The proportion of very weak cases is by far the most important consideration in determining this issue! And it seems like the kind of thing that requires in depth legal analysis of every single case, but at the end of the day might still be extremely subjective. Even asking people what “reasonable doubt” means will get you wildly different answers to what probability of guilt that means.
So the issue is your assumption that many of these cases are weak, just because the pleas are so favorable (“plea bargaining doesn’t seriously try to unearth the truth”). They might be strong cases, and dropping nearly all of them actually takes us a lot further away from justice. Maybe Huemer provides a lot more evidence that we will learn, but it’s only one possible explanation.
Daniel Grayson
Nov 3 2021 at 7:52pm
A sound argument for plea-bargain reform. Thank you!
Thomas Lee Hutcheson
Nov 4 2021 at 8:14am
The problem is that there are few incentives against prosecutorial misconduct.
Scott Sumner
Nov 4 2021 at 12:42pm
Very good post! I don’t know how often criminals know hidden evidence, but it’s a fascinating idea.
Mark Z
Nov 4 2021 at 1:13pm
It could, amusingly, incentivize criminals to create proof that they committed the crime – such as taking a picture of the crime scene – to hide somewhere in case they get caught. It could also make it easier to catch the less competent criminals who do a poor job of hiding their proof.
Clark Neily
Nov 23 2021 at 6:02am
Great post, and since this coercive plea bargaining has been the focus of my professional career (and personal passion) for the past several years, I’ll offer a few observations:
Innocent people in our system are regularly induced to plead guilty to crimes they did not commit. Regularly. Equally dismaying, when theses cases unravel and we find out all the things that were known to (and all too often suppressed by) the prosecution, it is not at all uncommon to see that any rational, unbiased person would have realized all along that there were serious doubts about the defendant’s guilt and that plea bargaining was used to obtain a conviction in a weak case where the outcome of a trial would have been uncertain at best. Former federal prosecutor Mark Godsey has written an extraordinary book called Blind Inustice in which he provides numerous horrifying anecdotes to illustrate this point and a poweful argument that police and prosecutors are subject to a number of well-known cognitive biases that routinely produce these travesties but that the system does virtually nothing to address or ameliorate.
If you’re not familiar with the story of (now-deceased) internet genius Aaron Swartz and plea bargaining, you should be.
The so-called “trial penalty,” which is the difference between the sentence offered for a guilty plea and the sentence threatened after a trial, is both real and pervasive, as meticulously documented in this eponymous 2018 report from the National Association of Criminal Defense Lawyers. To take just one current illustration, the standard plea offer in the “Varsity Blues” college-admissions investigation is two months, and defendants are expressly advised that if they reject that offer prosecutors will seek a superseding indictment the includes a 20-year conspiracy charge. Try to imagine any parent saying “no” to a two-month plea offer when threatened with 20 years if they go to trial and lose.
Unfortunately, as I demonstrate in this law review article from last fall (which appears to be the most comprehensive assessment coercion in plea bargaining yet published), the trial penalty is just one of many levers available to prosecutors to induce a guilty plea. Others include pretrial detention (highly effective), charge-stacking, mandatory minimums, and even threatening to indict (or regrain from indicting) a defendant’s family members simply to exert plea leverage. Indeed, the latter is so nakedly coercive that you might think it would represent a bridge too far even for our cowed and quiescent judiciary, but you’d be wrong. Check out the characteristically anodyne discussion of this ubiquitous practice starting on page 14 of this 2019 opinion from the Ninth Circuit.
None of this is new or unprecedented, either. On the contrary, various medieveal European countries used judicially sanctioned “thoughtful torture” to elicit confessions in criminal cases. As explained in this horrifying piece by Prof. John Langbein, it appears we’ve learned nothing from that experience, as our system mimics the former European one in every significant way, except that we rule out physical torture—and not because it’s necessarily the most coercive lever available to prosecutors, but rather because it offends our modern sensibilities.
My strong impression as a scholar, activist, and constitutional litigator is that virtually everyone underestimates the depth of the pathology here and thus ends up prescribing the wrong medicine. Coercive plea bargaining is not akin to high blood pressure or a moderate case of pneumonia, as most people seem to think; instead, it’s akin to a highly aggressive Stage IV cancer, and must be addressed accordingly. I propose some ideas at the end of the article linked to above, but two most important/efficacious are: (1) require prosecutors to put personal skin in the game if they wish to make a plea offer (among other things, this would help show the difference between “genuinely certain” and “not so certain”); and (2) create a “trial lottery” that would send a random number of cases resolved by plea bargain to trial in order to see what the outcome would have been—many observers, myself included, suspect that a dismayingly high percentage of cases currently resolved by guilty pleas would not result in convictions at trial; it’s time to stop wondering about that and find out for sure.
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