The Innocence Effect
University of Haifa - Faculty of Law
Notre Dame Law School
August 21, 2011
Duke Law Journal, Vol. 62
Nearly all felony convictions — about 95% — follow guilty pleas, suggesting plea offers are very attractive to defendants compared to trials. Some scholars even argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea offers only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial they may wish to avoid. Hence, even while heatedly disputing their desirability, both camps in the debate believe plea bargains commonly lead innocents to plead guilty. This article shows, however, that the belief innocents routinely plead guilty is overstated. We provide field and laboratory evidence for the hitherto neglected “innocence effect,” revealing that innocents are significantly less likely to accept plea offers that appear attractive to similarly-situated guilty defendants in light of the expected sanction at trial.
The article further explores the psychological causes of the innocence effect and examines its implications for plea bargaining: Positively, we identify the striking “cost of innocence,” wherein innocents suffer harsher average sanctions than similarly-situated guilty defendants. Yet our findings also show that the innocence effect directly causes an overrepresentation of the guilty among plea bargainers and the innocent among those choosing trial. In this way, the effect beneficially reduces the rate of wrongful convictions, even when compared to a system that does not allow plea bargaining. Normatively, our analysis finds both detractors and supporters of plea bargaining should reevaluate, if not completely reverse, their long-held positions to account for the innocence effect, its causes and consequences. The Article concludes by outlining two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether by accounting for the innocence effect.
Number of Pages in PDF File: 51
Keywords: Plea Bargaining, Wrongful Convictions, Innocence Effect
JEL Classification: K41, K42Accepted Paper Series
Date posted: July 6, 2011 ; Last revised: March 1, 2012
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