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July 26, 2011

"The Innocence Effect in Plea Bargaining"

The title of this post is the title of this new article by Professors Oren Gazal-Ayal and Avishalom Tor available via SSRN.  Here is the abstract:

About 95% of all felony convictions in the United States are the result of guilty pleas.  To maintain such a high guilty plea rate, plea bargain offers have to be very attractive, compared to trials.  Most legal scholars argue that these offers are attractive to guilty and innocent defendants alike.  Innocent defendants who cannot signal their innocence to the prosecutor are unable to signal their innocence in a trial too.  Hence, like guilty defendants, they will bargain in the shadow of the trial, and accept plea bargains that reflect the probability of conviction and expected jury-trial sentence.  Plea bargains, so we are told, lead to wrongful convictions.

Many scholars argue that plea bargains should be curtailed because they facilitate wrongful convictions.  Others contend that plea offers can only benefit innocent defendants, by offering them an alternative to the risky trial, which may lead to a much harsher sentence. Yet even while drawing contradictory conclusion regarding this practice, both camps in the debate agree that plea bargains often lead innocents to plead guilty.  They simply argue about the normative implication of this result.

The decades-long plea bargaining debate is based on a combination of scholarly beliefs and theoretical models, with little systematic evidence to support either position.  The present article draws on a diverse set of empirical findings to reveal the innocence effect, whereby innocents are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial.  After substantiating the innocence effect, we examine its implications for the plea bargaining debate, showing it requires both camps to reevaluate their policy prescriptions and offering some new proposals of our own to minimize false convictions, better to protect the innocent, and improve the plea bargaining process.

July 26, 2011 at 08:45 AM | Permalink


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This article documents the symmetrical failure of the incompetent lawyer profession. High false positives, high false negatives.

It does not answer 90% of serious crime, with 20 million FBI Index felonies and 2 million prosecutions. When answers a crime, it does so with the wrong guy.

Why is the failure so total? Take any other enterprise, run it as they did in 1275 AD, with supernatural core doctrines, plagiarized from a church document, evidence rules nearly unchanged from 1275 AD, no surprise that the failure would be total.

Only tort liability can pull the profession from this swamp of failure, for the prosecutor, the judge, and even the jury. While criminal prosecution fully qualifies for strict liability, a professionals standard of due care will suffice to improve the quality and diminish the total failure.

Posted by: Supremacy Claus | Jul 26, 2011 9:24:32 AM

Not quite ready for prime time, this one: Nearly every time I wanted to check a footnote for a source in this paper it was blank. There's an extent to which it's arguing against a unnamed, unquoted, uncited straw-man, debating an argument that they never quote anyone articulating. Few in the innocence movement would disagree that innocent people are less likely to plea guilty than guilty ones. Indeed, I know several exonerees who passed up chances at parole because they wouldn't say "I did it." But they portray the data as resolving some grand debate.

I was glad they discussed the Tulia case - which runs counter to their thesis - but doing so IMO left more questions than answers.

Posted by: Gritsforbreakfast | Jul 26, 2011 11:16:10 AM

Well, if they're even slightly correct, plea-bargaining is deeply corrupt.

But, they have a bit of a problem with math, arguing that plea-bargaining lowers the "rate of wrongful conviction":

First, most plea bargains ensure that the majority of the guilty
defendants plead guilty and therefore are surely convicted, while
many innocent at least gain the prospect of an acquittal in a trial. If it
were not for plea bargaining some of the guilty defendants that plead
guilty would have been acquitted in trial, and so the rate of the
innocent among the convicted would have been higher

Yes -- if you lower the denominator, the ratio goes up. But that doesn't change the numerator -- they haven't actually changed how many innocent people are wrongfully convicted! That in no way justifies, from the point of view of an innocent person, the system of plea-bargaining.

And there's the problem in law -- this paper is claiming to be particularly "empirical". But I see no equations, no models, it goes on and on for 37 pages... This is the empiricism of the 16th century.

Arguments in legal theory are apparently pure word salad, modeled on the scholastic debates of the medieval period which have been rejected in every other field as being prone to field-wide schizophrenia.

The quoted passage would have been obvious nonsense if it was written as an equation -- but in words, it takes several minutes to even parse. The data is difficult to tease out, is buried in verbiage and, being words, are imprecise and therefore untestable.

Posted by: notalawyer | Jul 29, 2011 3:32:29 PM

Scott Greenfield has a good take on this today.


And you know, what about Alford pleas? Some people liken those to nolo contendere pleas, but they're actually more than that - a factual denial of guilt in the course of a "guilty" plea.

Posted by: Atticus | Jul 29, 2011 4:07:42 PM

Please note that this is an incomplete and early draft that only appeared on ssrn as a conference submission. A more complete and current version will be available within a few weeks.

Posted by: Avishalom Tor | Aug 4, 2011 10:40:38 AM

I am not guilty; I plead to something when I was seriously ill and under duress. Now, unable to work, I contemplate ending my life as a senior unable to take care of myself. The depression is such hell. And, the ones who made the accusations have other victims and one even said to me "welcome to your own private hell". Motives were jealousy and greed. The corruption and coverup keep me stuck and without hope or any way to get this turned around and be able to work. I have health problems and have been turned down for work because of the slander and plea conviction; no money for lawyers. Tell all: no one innocent to plea!!!! I begged this substitute lawyer that it was wrong; my lawyer disappeared after telling me the County was going after my family. He lied to us and said I'd be able to get well, he knew that I ran out of money and said I could go back to work. Three years, and no credentials to work. It has ended my life.

Posted by: jan | Jan 31, 2013 10:28:14 PM

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