Punishing the Innocent

63 Pages Posted: 2 May 2007 Last revised: 3 Aug 2021

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law


Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, most innocent defendants are far better off in a world with plea bargaining than without. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, and/or trial. Much of the worry over an innocence problem proceeds from misperceptions over (i) the characteristics of typical innocent defendants, (ii) the types of cases they generally face, and (iii) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases, recidivist innocent defendants face high pretrial process costs (particularly if they are detained). But innocent defendants also enjoy low plea prices, because prosecutors ultimately prioritize work avoidance over sentence maximization. Moreover, defendants possess certain underappreciated bargaining advantages in these lowstakes cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are punished by process and released by plea. Thus, plea bargaining is no source of wrongful punishment; rather, it is a normative good that may cut punishment short, and (for the innocent at least) less punishment is a positive. Accordingly, the system must provide the innocent access to plea bargaining. Current vehicles for rational choice pleas - like no-contest pleas and equivocal pleas - are not up to the task. Instead, the system should re-conceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.

Keywords: criminal law, criminal procedure, plea bargaining, prosecutors, innocent, innocence, process costs

Suggested Citation

Bowers, Josh, Punishing the Innocent. U of Chicago, Public Law Working Paper No. 165, University of Pennsylvania Law Review, Vol. 156, 2008, Available at SSRN: https://ssrn.com/abstract=983819

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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