Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence

21 Pages Posted: 14 Sep 2011 Last revised: 9 Oct 2011

See all articles by Samuel R. Gross

Samuel R. Gross

University of Michigan Law School

Date Written: September 12, 2011


A criminal defendant in the United States faces a stark choice: accept the conviction and punishment the prosecutor offers as a plea bargain, or go to trial and risk much worse. In most cases the defendant has an overwhelming incentive to plead guilty; that’s why very few criminal cases go to trial. Unfortunately that incentive is similar for defendants who are in fact guilty and for those who are not. As a result, some innocent defendants plead guilty. We know it happens – some innocent defendants who plead guilty are later proven innocent and exonerated – but we have no idea how often.

In this article I consider an alternative structure. We could offer defendants a different sort of pretrial option: not to plead guilty in return for reduced punishment, but to waive major procedural rights at trial in return for important procedural advantages on post-conviction review if they are convicted. In theory, this pretrial choice should be sufficiently more attractive to innocent defendants than to guilty ones that it will separate the two groups more effectively than our current practice. Along the way, if this option became regular practice, it might also reduce our reliance on plea bargaining, regain some lost ground for criminal trials, and improve the accuracy of fact finding in criminal cases.

Is this plan is practical? Is there a chance that it might be adopted somewhere? I wonder. I offer it as a thought experiment: an attempt to think through an alternative procedural universe in order to better understand the one we live in – which might lead to something useful.

Keywords: wrongful conviction, exoneration, plea bargaining, pretrial incentives, criminal law, criminal prosecution, Post-conviction review, plea bargain

Suggested Citation

Gross, Samuel R., Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence (September 12, 2011). New York Law School Law Review, Vol. 56, No. 3, 2011, Available at SSRN:

Samuel R. Gross (Contact Author)

University of Michigan Law School ( email )

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Ann Arbor, MI 48109-1215
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