Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence
2022 Wisconsin Law Review 533 (2022)
87 Pages Posted: 18 Oct 2021 Last revised: 6 Jun 2022
Date Written: October 18, 2021
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.
Utilizing 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 utilize 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 2010-2020.
In broadest terms, the data reveal that, in post-conviction litigation involving defendants with a high likelihood of being actually innocent and wrongly convicted, prosecutors offered plea bargains in 23 percent 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 of the original sentences (45 percent off the original sentence). The effect was that they offered to erase more than 90 percent of the total time the defendants had left to serve; the remaining years the defendants had to serve represented on average 6 percent of the original maximum imposed sentence. Indeed, in 88 percent of the cases, the effective remaining years on the sentence derived from the plea offer was zero, as most prosecutors offered time served. The data also show that in total, 56 percent of the defendants accepted these hard-to-refuse bargains. Finally, in most cases in which defendants rejected plea offers prior to adjudication of their post-conviction 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, 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.
Keywords: Plea bargaining, trial shadow, innocence, wrongful conviction, coercion, post-conviction, new trial, negotiation, innocence network, innocence project
JEL Classification: K42: Illegal Behavior and the Enforcement of Law
Suggested Citation: Suggested Citation