by David M. Reutter

The majority of people held in jails throughout the U.S. have not been convicted of a crime. They are more inclined to accept plea offers to secure immediate release from incarceration. A recent study found that “the added risk of COVID exposure in jail made participants-defendants more likely to plead guilty to avoid pretrial detention, whether they are actually guilty or not.”

With approximately 95% of state and 97% of federal criminal cases being resolved via plea bargains, the criminal justice system has become “a system of pleas.” CLN has reported on how that system evolved and how prosecutors often abuse their leverage of a trial penalty to put innocent defendants in a position to make a Hobson’s choice.

Studies have found that incarcerated defendants identify the desire to be released as one of the most important factors for accepting a plea bargain in exchange for a guilty plea. Some studies suggest that 10-20% of guilty pleas may actually be false. Of course, there are external factors that influence decisions to enter a guilty plea. The recommendation of an attorney to plead guilty or just the mere fact of only listing a defendant’s options has been found to compel innocent persons to plead guilty. The authors of the study under review in this article “expect innocent defendants to be influenced by external pressures like the risks associated with being detained more than their guilty counterparts.”

The study was conducted by Mike M. Wilford and Kelly T. Sutherland from the University of Massachusetts Lowell; David M. Zimmerman from Missouri State University; and Shi Yan from Arizona State University.

Their focus was on the pressure that COVID-19 has put on defendants who are held in pretrial detention. As a result of the pandemic, “detained defendants who insisted on their right to trial faced two additional risks: the possibility of a COVID-19 outbreak at the detention location and extended detention due to trial delays,” they wrote. “These two factors could have effectively increased the proximal gains for pleading guilty for those offered sentences of time served.” As such, just as false confessions are more vulnerable to the influence of external factors, the authors predicted that the crisis of COVID-19 and the effect of information on it would make persons more likely to plead guilty.

The study is based upon the response of 704 participants with a mean age of 31 years old. It was designed as a “2 (Guilt status: innocent or guilty) x 2 (COVID: information or no information)” among participants. All participants were randomly accused of theft and randomly assigned to guilt or innocence via an animated flashback sequence. “About half of the participants were randomly assigned to receive information from their defense attorney regarding the complications posed by the current COVID-19 pandemic, while the other half were not told anything about COVID-19.”

The simulation allowed participants to construct an avatar. Once the avatar was complete, the scenario included a date stamped incident involving the participant-avatar walking through a mall, arriving at a sunglasses store, and trying on a pair of sunglasses as the scene fades. Text then appears to inform the participant of a court summons that arrived two weeks later, using the participants real first name.

The next scene begins with a prosecutor pressing a case against the participant with “surveillance footage showing the participant-avatars asking for expensive sunglasses, trying them on, and then walking toward the exit with the sunglasses atop their heads.” This was used for all participants, “as the angle made it plausible that such footage could miss an innocent person leaving merchandise immediately before leaving the store.” A judge than informed the participant of their rights and stated they would be detained until counsel could be assigned to the case.

The scene then flashed to the avatar in a holding cage. All participants then experienced a flashback. Innocent avatars were shown setting the sunglasses on the counter before leaving the store while the guilty avatars were seen leaving the store with the sunglasses on their head. In both conditions, the avatar explicitly states whether they are guilty or innocent.

The simulation then proceeded to a meeting with defense counsel, who presents the prosecutor’s plea bargain of six months of probation in return for a guilty plea. If rejected, the participants were told the prosecutor would seek a maximum sentence of nine months in jail, and pretrial detention, due to their prior conviction.

Participants were then asked to rate the chances they would plead guilty based upon the plea bargain. Those in the COVID-19 condition were informed of court delays due to the pandemic and the possibility of an outbreak at the jail, as well as the heightened risk of contracting the virus in jail and the difficulty in obtaining appropriate care. Finally, participants were directed to either “Plead Guilty” or “Reject Offer.”

As the authors of the study predicted, those in the guilty condition were far more likely to plead guilty (87%) than those in the innocent condition (50%). As the authors also predicted, “the presence or absence of COVID information significantly predicted plea acceptance.” While there was little difference for those in the guilty condition, those in the innocent condition were more likely to plead guilty when given COVID information. When no information was given, innocents pleaded guilty 44% of the time. The provision of COVID information led to guilty pleas in 56% of innocent cases, resulting in a 12% increase in false guilty pleas when this external factor was in play.

“The current research experimentally demonstrates that the COVID-19 pandemic could be meaningfully impacting plea decisions,” wrote the authors. “Furthermore, COVID-concerns favored more heavily among false guilty pleaders than true guilty pleaders. These findings provide support for the notion that defendants may feel increased pressured to plead guilty to avoid jail during a pandemic, and that innocent defendants might be particularly susceptible to this increased pressure.”

“[T]he false guilty plea rate [of 44%] even in the no COVID-information condition was still substantial,” the authors noted. “This result also highlights the degree to which pretrial detention can make place offers alluring even when the difference between the plea and trial sentence is relatively small.”

“COVID-19 has visibly exacerbated many long-existing problems within the court system, and this pandemic offers an inflection point after which practitioners should consider alternative and innovative modes of criminal processing,” continued the authors. “Anything that increases the risks associated with pretrial detention, like a pandemic, will naturally make the prospect of immediate release and pleading guilty more attractive.”

The study’s authors concluded by urging policymakers and prosecutors to be “aware of these dynamic mechanisms in order to better protect the rights of all defendants.” 

Source: “Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic,” Journal of Experiential Psychology: Applied

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