Keith A. Findley, et. al, Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence, 2022 Wis. L. Rev. 533 (2022)
Abstract
Critics of plea bargaining have long contended that it has an innocence
problem-that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies
confirm that innocent individuals can indeed be induced to plead guilty, little
real-world empirical evidence exists about the nature and extent of plea
bargaining's innocence problem. Drawing on original empirical data, this Article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which
prosecutors in real cases use their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals. To address these questions, we collected a wide range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010 to 2020.
In broadest terms, the data reveal that, in post-conviction litigation
involving defendants with a high likelihood of actually being innocent and
wrongly convicted, prosecutors offered plea bargains in 23% of the cases.
Moreover, when prosecutors made plea offers, the plea concessions they offered were uniformly steep. Prosecutors on average offered to knock off
close to half-450/o-of the original sentences. The effect was that they offered
to erase more than 90% of the total time the defendants had left to serve; the remaining years the defendants had to serve represented on average 6% of the original maximum-imposed sentence. Indeed, in 88% of the cases, the effective remaining years on the sentence derived from the plea offer were zero, as most prosecutors offered time served. The data also show that in total, 59% of the defendants accepted these hard-to-refuse bargains. Finally, in most cases in which defendants rejected plea offers prior to adjudication of their postconviction motions, and in every case in which they rejected plea offers made
after they had won a new trial, they nonetheless prevailed in obtaining relief
from their convictions. Examining these patterns through the lens of the shadow-of-the-trial
theory of plea bargaining, we find that our data provide preliminary evidence that some prosecutors do indeed bargain strategically in the shadow of a trial, discounting the maximum sentence sought by the perceived likelihood of
conviction, and they do so even when the likelihood of conviction appears virtually nil. Hence the data also offer support for the concern that some prosecutors are using their leverage in plea bargaining to preserve convictions in serious cases, even when they know the chances of conviction at trial are quite low and therefore the possibility of innocence is unusually high. Finally,
this Article explores possible reforms to mitigate the harmful consequences of
these patterns in a system ostensibly designed to seek the truth and protect the
innocent.
