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October 5, 2011

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

The title of this post is the title of this provocative new paper by Professor Samuel Gross, which is now available via SSRN. Here is the abstract:

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.

October 5, 2011 at 06:49 AM | Permalink

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Comments

Perhaps the good professor would be kind enough to propose a similar "thought experiment" to address the persons who falsely plead innocence and are not convicted. Give the law-abiding public the ability to have "more open reconsideration of any acquittal returned if new evidence of guilt surfaces months or even years after acquittal." Let's keep the process going in perpetuity.

It would be an equally valid exercise. Or perhaps he only cares about one side of the equation?

Posted by: Rich Mantei | Oct 5, 2011 8:34:56 AM

"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."

That's simply not true. No system is or will be perfect, so there will always be some chance of convicting an innocent person. But that chance is vastly lower if the defendant actually IS innocent rather than guilty. The idea that there is a similar chance of getting convicted if you didn't do as if you did will be recognized as preposterous by anyone with any extensive courtroom practice.

I've said it before, but apparently it needs repeating. The overwhelming reason people plead guilty is not that they're terrorized into doing it by prosecution thugs. The reason is that they ARE guilty and they (and their lawyers) know the government can prove it. Thus the most profitable course is to see how much of a deal the prosecutor is willing to give you so that he can avoid the risk of a Casey Anthony-type jury (and the work of preparing for trial).

If a point be made of it, however, Rich Mantel makes a worthwhile suggestion, albeit one that's problematic for Double Jeopardy reasons. If, as Professor Gross says, the idea is more reliably to separate out the truly innocent from the truly guilty, and to do this essentially by continuing the investigation post-trial, what reason in principle is there that we should not be able to use the post-trial investigative results to correct the miscarriage of justice that occurs when a guilty person obtains a windfall acquittal?

Posted by: Bill Otis | Oct 5, 2011 9:46:33 AM

Rich Mantei,

As a society we have already answered that question at the constitutional level.

I did read the paper in question. The proposed procedure leaves me extremely uneasy though solid objections are hard to formulate.

One qualm I would bring up, I don't think the outlined procedure would have helped the Tulia defendants at all, despite the author using that case to point out a particular danger of our current system.

I think a better answer would be to lower the interest in finality of judgement where substantial doubt is shown in the guilt/innocence determination. A convicted defendant should not have to prove themselves innocent beyond reasonable doubt before being granted a new trial but that is very close to the standard now.

Posted by: Soronel Haetir | Oct 5, 2011 9:58:19 AM

Soronel:

Agreed as to societal answer. However, the prof proposes dispensing with several other portions of those Constitutional-level protections you refer to in the name of "greater accuracy." So If that's his true goal, it would seem he wouldn't mind doing-away with others. But then, if accuracy here is just code for something else, I think we all know the answer he would make.

Posted by: Rich Mantei | Oct 5, 2011 12:05:51 PM

'The idea that there is a similar chance of getting convicted if you didn't do as if you did will be recognized as preposterous by anyone with any extensive courtroom practice.'

I sure Amanda Knox and her defense team might disagree with that statement.

Posted by: comment | Oct 5, 2011 1:02:25 PM

and I'm sure this man and his team would also disagree with the previous statement.

http://news.yahoo.com/texan-freed-dna-clears-him-wifes-slaying-210522279.html

Posted by: comment | Oct 5, 2011 1:08:34 PM

Bill,

I do believe that by the time trial is reached there is a fair chance that the innocent will be convicted. The winnowing process of charges being dropped would tend to indicate that by the time someone actually goes to trial the prosecution is convinced because of or in spite of the evidence in their possession. Factors such as tunnel vision only become stronger the deeper into the process you get.

I'm not at all convinced however, that the proposal of a streamlined trial process would alleviate any of these concerns. I could in fact see such a process making things worse.

I absolutely agree with you that the vast majority of defendants plead guilty because they are in fact guilty and pleading out is in their best interests. I also agree with you that no system will produce 100% correct answers. That does not, however, mean that the system we have is necessarily as good as we could make it at separating fact from fiction. I am quite happy to entertain proposals for increasing the reliability of the processes we use. The recent New Jersey eye witness identification case is an example of a good step in the right direction. As would be forcing the FBI and other investigative agencies to record all interviews where practicable, rather than relying on written summaries taken afterward.

Posted by: Soronel Haetir | Oct 5, 2011 1:22:51 PM

comment --

The notion that two cases, or 22, or 222, undermines the fact that your chances of getting convicted are far lower if you're innocent than if you're guilty, is absurd, as you surely know.

I never said the chance was zero. It isn't, and it won't be in any alternative system either. But it's vastly lower if in fact you didn't do it -- a fact that, for all your flashy individual case, you conspicuously do not and could not truthfully deny.

P.S. I don't give a hoot what Amanda and her defense team think, nor do I have any wish to be her roommate or have a party with her. I hear the outcome tends not to be so pleasant.

Posted by: Bill Otis | Oct 5, 2011 2:54:23 PM

My old criminal law prof certainly is getting at one important set of issues. Honestly, however, and perhaps it is why I tend to favor this blog, I'm often more outraged by grossly excessive sentences for the guilty than by wrongful convictions. Both happen. The former former, however, frequently has no remedy.

Posted by: ohwilleke | Oct 5, 2011 6:17:55 PM

'I don't give a hoot what Amanda and her defense team think'

I'm sure they and the rest of the world share the same thoughts about your personal feelings on this and many other things as well. You seem to find it difficult to acknowledge and reconcile the fact that there are more cases such as these raising their ugly heads and continually picking away at your sacred unerring system of justice. Are cases like this seeing the light of day due to the ever increasing advances in investigative science, the media or improvements in investigative tools that are now more easily accessible and challengeable by those being prosecuted? Now, if only we could get the system and its various functionaries to be more directly accountability for their actions or should we say inactions we may actually get somewhere in improving and implementing some welcome changes to our present justice system.

Posted by: comment | Oct 5, 2011 6:40:41 PM

comment --

"You seem to find it difficult to acknowledge and reconcile the fact that there are more cases such as these raising their ugly heads and continually picking away at your sacred unerring system of justice."

Kindly quote the post of mine where I said the system is either sacred or unerring. If you can't, I trust you'll retract this falsehood.

Should I wait?

P.S. What are your proposals for reducing the number of erroneous acquittals?

Posted by: Bill Otis | Oct 5, 2011 9:26:20 PM

Or Congress could eliminate mandatory minimums and see what happens.

Posted by: beth | Oct 5, 2011 11:03:41 PM

beth --

"Congress could eliminate mandatory minimums and see what happens."

We didn't have anything like the MM's we have now in the 60's and 70's, and Congress did indeed see what happened, to wit, that the crime rate went through the roof. And that, of course, is the reason MM's came into the law is such numbers in the mid-eighties.

Q: What happened to the crime rate then?

A: It plummeted. It's now at its lowest point in 50 years. The number of serious crimes has dropped between 40% and 50% since its peak. Indeed, there were four and a-half MILLION fewer serious, non-drug crimes last year than 20 years ago.

Q: What's the definition of a successful criminal justice system?

A: One that reduces the crime rate and the number of crimes, thereby saving tens of thousands of people from becoming crime victims.

Q: What's the definition of stupid?

A: Turning away from something we know works to repeat the naive, failed policies of the past.

Posted by: Bill Otis | Oct 6, 2011 12:22:14 AM

You're right of course. If everyone believes that MM are working well and are a successful policy, they will not be changed.

If, on the other hand, the majority of the public sees MM as part of a policy that is not fiscally responsible they will look for solutions. The public may also question the deminishing of civil liberties and bluring of the execuative and judicial power.

I think this is the tension that is giving spark to the dialogue.

Posted by: beth | Oct 6, 2011 10:48:27 AM

'What are your proposals for reducing the number of erroneous acquittals?'

Excuse me, I was hoping to rely on your 18+ years in the legal profession and intimate knowledge of it's inner workings to show me the error of my ways but alas you fail me Bill for you are too imbedded in it's present structure to see questioning or criticism of it as possibly being something that should be considered healthy for it. Especially when its being questioned not by those inside your professional circle but by those outside and the ones most affected by the consequences.

Posted by: comment | Oct 6, 2011 8:51:52 PM

comment --

Since you didn't answer, I'll ask again:

Kindly quote the post of mine where I said the system is either sacred or unerring. If you can't, I trust you'll retract this falsehood.

Plus I have a new point, raised by your most recent entry. Kindly quote the post of mine where I said that criticizing or questioning the current system is unhealthy.

While we're at it, you can answer yet another question you passed on:

What are your proposals for reducing the number of erroneous acquittals?

What, no answer? Only interested in miscarriages of justice when they provide talking points for the NACDL? How wonderfully selective.

Posted by: Bill Otis | Oct 7, 2011 10:47:15 PM

think about it. after arrest, everything is turned over to the lawyers. defense prosecution judge. everything is placed in the lawyers hands. the lawyers are now responsible for the the quality of the outcome. yet, the lawyers refuse to take responsibility of the results that clearly are their responsibility. maybe, just maybe, if all the lawyers weren't being paid from one source - the taxpayer - things would be different. lawyers wanted gideon, and got gideon. the floodgate of gov't funding was open wide. and because of the new source of funding, the lawyers looked the other way at the inherent conflict of interest when the defendant is completely surrounded by gov't agents. many other conflicts exist. hell, state supreme court is the manager of many state bars. another conflict. its time for the lawyers to separate the powers, eliminate the conflicts, so as to truly create adversarial system thats separate from each other. addicted to gov't funding and the "partnership mentality such as cops jailers defense prosecutors judges etc "collaborating" wtf - is the real problem with the system - the lawyers are responsible for allowing all the conflicts. and the lawyers will never fix the system - its much too lucrative the way it is. its the lawyers stupid.

Posted by: concernedcit | Oct 8, 2011 8:06:24 AM

'How wonderfully selective.'

no more than you billy boy :-0 you might also want to look up the 'Russell's teapot analogy' in case your not familiar with it.... :-)

http://en.wikipedia.org/wiki/Russell%27s_teapot


Posted by: comment | Oct 8, 2011 8:17:01 PM

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