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Ruth Grant


Innocent Until Proven Guilty?

Posted: 12/22/11 04:12 PM ET

"Christopher Ochoa falsely confessed and pled guilty to a murder in Texas that he didn't commit. He testified against his co-defendant to avoid a possible death sentence, and served nearly 12 years in prison before DNA testing led to his exoneration..."

The Innocence Project lists 23 people, like Mr. Ochoa, who pled guilty to crimes they didn't commit and served a combined total of more than 100 years in prison.

The Sixth Amendment of the U.S. Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ." Nonetheless, 90-95% of felony prosecutions never go to trial -- they are settled by a guilty plea. Plea bargaining occurs when a defendant agrees to waive his right to trial and plead guilty in exchange for a reduced charge, a reduced sentence or both. Today, plea bargaining is at the heart of our criminal justice system. That was not always the case. In 1877, the Wisconsin Supreme Court declared that plea bargaining "was hardly, if at all distinguishable in principle from a direct sale of justice." Not until 1970 did the Supreme Court uphold the constitutionality of plea bargaining.

Some view plea bargaining as a straightforward negotiation. The prosecutor gains a conviction without the effort and expense required to prove the defendant's guilt in court, while the defendant gains a lighter sentence than would be imposed if he were found guilty after a trial. Both parties are happier than they would be without the deal. What could be wrong with a system such as this? Critics of plea bargaining look paternalistic: unwilling to allow defendants to decide what is in their own best interests.

But even many supporters of plea bargaining recognize that the bargain rarely takes place under ideal conditions for fully informed, voluntary consent. The prosecutor's offer looks an awful lot like a threat: the message is, "Accept this offer of leniency, or we will throw the book at you.'" Prosecutors are most likely to offer large sentence reductions when they do not have a strong case, that is, when the defendant is most likely to be innocent. For an innocent person charged with a capital crime, the pressure to plead guilty to a lesser charge rather than take a chance on a trial must be extreme. Moreover, the negotiation takes place between the prosecutor and the defense attorney. The defendant sometimes has as little as twenty minutes to decide whether or not to accept a negotiated plea.

There are plenty of proposals for reforms to treat the system's "abuses." But it's time we took a good look at plea bargaining itself. Can plea bargaining serve the legitimate purposes of the criminal justice system? That system is meant to ascertain the facts according to the evidence and to assign punishment proportionate to the crime. These purposes -- truth and justice -- cannot be served by bargaining. A bargaining process necessarily undermines both.

Plea bargains settle the question of guilt without adjudication of the evidence. They fail the cause of truth. Plea bargains always give the defendant either more or less than he deserves. They fail the cause of justice. Either the defendant is guilty, but gets off easy, or the defendant is innocent but pleads guilty to avoid the risk of greater punishment. To make matters worse, punishment is distributed unfairly, with similar individuals who have committed the same crime ending up with very different sentences, either because they were offered different deals or because one exercised his right to trial and the other did not.

One critic likens plea bargaining to a professor who negotiates with his students over grades. The professor avoids the effort of grading papers by agreeing with the student that the student will accept a "B," foregoing both the chance of getting an "A" or the risk of getting a "C" if the professor has to read the paper. In assigning punishment, as in assigning grades, people are meant to get what they deserve.

Because plea bargaining undermines the purposes of the criminal justice system, it undermines its legitimacy, and the effects ripple through the society. A victim of a crime that could be described as kidnapping and assault with a deadly weapon becomes bitterly cynical when his assailant is caught and charged with simple robbery, which puts him back on the streets in short order. People living in high-crime communities, which may have the greatest contact with the police and prosecutors, become distrustful and disaffected. This is not a trivial consideration in judging the practice of plea bargaining.

Just as buying votes undermines the integrity of the electoral system, buying guilty pleas with leniency undermines the integrity of the criminal justice system. Is it legitimate for the state to offer to buy a guilty plea or is it an abuse of state power?

Here, the legal doctrine of "unconstitutional conditions" is instructive. In some cases, the courts have prohibited government from offering benefits with certain kinds of "strings attached." The state cannot offer tax or unemployment benefits only to those who take a loyalty oath or offer employment opportunities only to those willing to work on Saturday. Such conditions infringe upon free speech and freedom of religion, and are considered "unconstitutional conditions." In plea bargaining, the state's offer of leniency goes only to those willing to waive their right to trial by jury, their right to confront their accusers, and their right against self-incrimination. Maybe the doctrine of "unconstitutional conditions" ought to apply to plea bargaining too. Is abolition of plea bargaining a practical possibility? We don't really know what the effects would be.

Plea bargaining seems efficient -- it saves the costs of trials. But it is also costly in other ways -- including the costs of incarcerating the innocent and leaving the real perpetrator at large. The few studies that have been done on the matter show that abolishing plea bargaining does not greatly increase the number of cases that go to trial. A significant number of defendants plead guilty without being offered anything in exchange. There are civil law countries that function without it. Certainly, abolishing plea bargaining would require revising many aspects of the system and learning a lot more than we know now.

But it is high time we recognized that we've got a problem. "Innocent until proven guilty" is a bedrock principle of American justice. To make it meaningful requires a fundamental reassessment of the plea bargaining system.