Structural Coercion: Plea Agreements and the Dilemma of the Innocent

There is a thought that only the guilty would admit their guilt and enter into plea agreements. Because why would an innocent person accept the guilty verdict of a crime they in fact did not commit? That theory, however, simply is not true. The plea bargaining process is driven by prosecutorial dominance and is overly coercive to induce guilty pleas. The problem is that our criminal judicial system is plea oriented; dominance that begins with the state office’s prosecutor and extends as high as to the judge. The plea bargaining process presents an attractive out for the state in that it is efficient and requires less of an allocation of resources. However, that same out is not as defense friendly. The scenario can be as simple as “plead guilty and take 15 years in prison or take your chances at trial and get life.” This is a decision that could rest on the shoulders of a guilty defendant, who arguably may deserve the sentence. However, it could also rest on the shoulders of an innocent defendant who would be forfeiting many constitutional rights in order to avoid the huge risk of a jury trial.

 It is clear that the plea bargaining system has value to it. It could be argued that the most important value to the criminal justice system is it’s ability to control resources and more effectively allocate time. Simply put, most attorneys and judges don’t want to see something go to trial every time that it could. Furthermore, defendants have a want and desire for plea-bargaining. The courts have recognized this as a valuable resource to defendants as well. Two cases in particular have signified the court’s apparent light bulb moment that showcased the importance of pleas to defendants. In Lafler v. Cooper and Missouri v. Frye the Court, for the first time, recognized the legitimate interest a defendant would have in a plea agreement. The reality is that defendants get very different convictions and sentences depending on whether they plead guilty or go to trial, independent of the facts of the case, their moral guilt or anything else.  These court decisions are significant in that for the first time the focus is not whether a defendant was competent in taking the plea or whether or not the promises made on each end were upheld. Instead, these decisions focused on the defendant’s right to accept the plea. While the cases made no assertion that getting a plea is a constitutional right, it did discuss the defendant’s interest in taking a plea and not taking a risk or a gamble on a jury or bench trial.

Courts welcome plea agreements. Absent ineffective counsel, and as long as they find that the plea was entered into voluntarily and knowingly the courts support these types of discussions and welcome them into their courtrooms. The Frye and Lafler decisions speak to that message in that they realize that while there is no obligation to accept a plea, nor is there a substantial right to enter into a plea, their is a need for them. The courts need them to better allocate resources, the prosecutor needs them to manage their flow of cases efficiently, and the defendants need them to mitigate their chances at trial.

It can be argued that the plea agreement system is intrinsically coercive through its ultimate design. Think about it. A defendant has been charged with a serious crime. The prosecution wants to come to a resolution to ensure appropriate allocation of time and resources and the defense wants to come to the best resolution for their client to avoid a lengthy and potentially dreadful trial. The two sit in a room and discuss the charges, sentencing guidelines, and other mitigating factors. While the prosecution wants to resolve the case quickly and avoid trial, whether it is from pressure from a superior or an already full docket, they still hold all of the cards. Trials are long, costly, and involve a lot of risk. Having the discretion of what to charge, prosecutors will charge bargain in order to induce a plea. For example, instead of a first-degree murder charge where a defendant could receive life imprisonment, they would drop it to second-degree murder charge where they could receive at max forty years. The defendant is between a rock and a hard place. Forty years is a long time, but it’s not as long as life. What jurisdiction are they in? Is death a possibility? What evidence does the State really have to fulfill their burden? All very plausible questions that may be running through a defendant’s mind as he is plagued with the question of “do you want to take the deal?” This is a huge dilemma, especially for an innocent defendant. Take your chances at trial or take the deal? The methodology used here is overcharging, in which the State will either charge you with the highest charges carrying the highest sentences if you choose to go to trial, or give you a lower offense if you decide to plea. At the surface, this seems highly improper and coercive.

This is the innocent defendant’s dilemma. It plagued Brian Banks, a now free agent, after playing with the Atlanta Hawks, who plead guilty and served time in prison for a crime he didn’t commit. A rising football star, Banks was wrongfully accused of rape and kidnapping in 2002 at 17 years old.  He was then faced with an incredibly difficult decision, he could either stand trial and risk a 41 years to life sentence, or take a plea deal and spend around 5 years in prison. He took the plea. Almost 10 years later the accuser recanted her story and admitted to fabricating the entire story. In 2012, his conviction was reversed. Banks isn’t the only innocent defendant to accept a plea of guilt in exchange for a more lenient and attractive jail sentence. Take, for example, Ada JoAnn Taylor, who pled guilt to aiding and abetting second-degree murder. If she pled guilty she would be rewarded with a sentence of 10-40 years in prison, but if she went to trial and was convicted she would likely spend the rest of her life behind bars. She took the plea. After 19 years in prison, DNA evidence proved that she was innocent, and her conviction was reversed.

The Innocence Dilemma study involved 76 students at a small technical university in the southeastern United States. The study participants signed up for what they believed was a psychological inquiry into individual versus group problem-solving performance. In half of the cases, the confederate asked the study participant for assistance in answering the questions, a clear violation of the research assistant’s explicit instructions. In the other half of the cases, the confederate sat quietly and did not ask the study participant for assistance. After completing the second set of logic problems, the research assistant, who did not know whether cheating had occurred, collected the logic problems and asked that the students remain in the room for a few minutes while the problems were graded. Approximately five minutes later, the research assistant reentered the room and said, “We have a problem. I’m going to need to speak with each of you individually.” The first alternative the research assistant offered was a “plea” in which the study participant would be required to admit he or she cheated and, as punishment, would lose all compensation promised for participating in the experiment. The other half of the students was offered a harsh sentencing condition. Almost 9 out of 10 guilty study participants accepted the deal, while slightly less than 6 out of 10 innocent study participants accepted the deal as well.

The empirical study as outlined above, further supports the inherently coercive nature of plea-bargaining. A prosecutor is given a huge upper hand in regard to charging, evidence at their disposal, and the autonomy to structure the plea. In an effort to lower the burdens on the courts and save time, prosecutors can push for the acceptance of the pleas through overcharging as well as misrepresenting the case and evidence in order to have the defendant ineffectively calculate their risks of going to trial.  This manipulation of the judicial system creates an even more unilateral plea-bargaining system; one that is largely non beneficial to the defendant. The extreme likelihood that innocent defendants will in fact falsify their stories to admit guilt in exchange for a lower sentence shows that there is a problem with the system. Prosecutors should be prohibited from overcharging and there should actually be some sort of bargain in the plea bargaining process. Such disparities in plea sentencing and trial sentencing should not exist. The only way to help create a more balanced system is to adjust the grave disparities between trial and plea sentencing, hold prosecutors accountable for misconduct (specifically Brady violations), and disallow overcharging by limiting the charges that can be brought forth.

By Amber Cleaver

Staffer, Criminal Law Practitioner

Photo by Clyde Robinson via Flickr