by David M. Reutter

A counseled plea bargain is the fastest and most economical resolution to a criminal case. The American justice system has come to tolerate and encourage plea bargains because of these attributes. Recent studies, however, find that a defendant who enters a plea with the assistance of counsel is more likely to be the subject of coercion. These studies also show that defendants will lie to obtain a deal.

With about 95% of all state criminal convictions and 97% of federal convictions being resolved via a plea bargain, the institution of plea bargains has come to dominate the American criminal justice system. One would presume, based upon the commonality of plea bargains, that plea bargains were part of the common law that forms the basis of our justice system.

Such a presumption was roundly rejected in 1968. At that point in history, the Supreme Court of the United States (“SCOTUS”) had rejected every guilty plea induced by threats or promises of leniency that had arrived on its docket. It did an about face in 1970 by finding that it was constitutional for prosecutors to offer inducements to obtain a guilty plea—even if the inducements were the threat of longer sentences after trial. Brady v. United States, 397 U.S. 742 (1970).

Just three years later, SCOTUS said that while such threats may discourage defendants from going to trial, “the imposition of these difficult choices [is] an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe,412 U.S. 17 (1973).

CLN’s September 2021 cover article, “Trial Penalty: The Harm in Coercive Prosecutorial Tactics and Plea Bargains,” detailed how this system of tolerating and encouraging plea negotiations has devolved into giving prosecutors a tool that has tilted the scales of justice. That report detailed how prosecutors leverage their power to pressure defendants to waive their right to trial, and all the adherent rights encompassed within that right, to avoid the “trial penalty.”

The intimidation factor for defendants is often overwhelming, leading to innocents agreeing to plea bargains. In our earlier report, we noted that 11% of the 354 persons exonerated by DNA evidence actually pleaded guilty to a crime they didn’t commit in order to avoid the trial penalty. The National Registry of Exonerations has identified 359 exonerees who pleaded guilty.

Overturning a guilty plea is one of the hardest results to achieve in post-conviction litigation. So long as a defendant understood the nature of the charges and the consequences of pleading guilty, courts presume the plea was entered knowingly and voluntarily. Thus, getting to the bottom of how many innocents have entered a guilty plea to avoid the trial penalty, or were subject to coercion by an overburdened public defender, cannot be quantified.

New research casts doubt upon whether the American system of tolerating and encouraging the negotiation of pleas is truly a legitimate system. In approving plea bargaining, SCOTUS clearly stated that plea bargains must be voluntary and that offered incentives to plead guilty must not “overbear [ ] the will.” In making that pronouncement, the Court in Brady v. United States said it “would have serious doubts about this case if the encouragements of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.” The Court found no factual or scientific basis to conclude innocents were entering false pleas of guilty.

In an article published in For the Defense, Lucian E. Dervan, a Professor of Law and the Director of the Criminal Justice Studies at Belmont University College of Law in Tennessee, noted that little research on the issue under review was conducted in the immediate aftermath of the Brady decision, but advances have been made in the field over the last decade.

“We know now, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain. Further, we know that the presence of counsel can actually increase, not decrease, the false prevalence of false pleas of guilty. We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent.” Dervan wrote. “Finally, we know that defendants will not only plead guilty, but that they will also falsely testify against a co-defendant in return for the benefits of the deal.”

As CLN reported, Dervan and Dr. Vanessa Edkins conducted a “psychological deception study that tested how likely it might be that an innocent individual would falsely plead guilty in return for the benefits of a bargain.” [See: CLN, June 2021, p.32.]. That study involved students who were accused of cheating in a controlled environment. The study was constructed so that half of the participants would cheat. Regardless of whether they cheated, all participants were accused of cheating.

The study’s results were published in 2013. It found that 89% of the guilty participants took an offered plea bargain. “With regard to the innocents, 56 percent of the participants were willing to falsely confess to an offense they had not committed in return for the benefits of the bargain.”

That study was expanded upon by one published in 2018 by Dr. Kelsey Henderson and Dr. Lora Levett. Their study found participants falsely pleaded guilty 35% of the time. Where an advocate participated and recommended proceeding to trial, the false plea rate dropped to 4%. The most important finding was that where an advocate participated and provided only educational information regarding the available options, 47% of the participants pleaded guilty. When the advocate participated and recommended pleading guilty, the false plea rate jumped to 58%. In other words, if counsel did not recommend proceeding to trial, the false plea rate increased above that where no advocate was present.

Dervan and Edkins followed up on their study with a 2018 report that explored the effects of innocence, pretrial detention, and collateral consequences that emanate from a conviction. They affirmed the phenomenon of innocents falsely pleading guilty to obtain the benefits of a plea bargain. Next, they found that collateral consequences did not alter defendants’ decision-making process, even where the consequences had life-long impacts. They found that persons in pretrial detention were more focused on the immediate effects of reduced sentences or release from pretrial detention than the consequences of the plea. Finally, they found that “pretrial detention significantly influenced plea decisions.”

Dervan, Edkins, and Professor Andrew Pardiek published another study in December 2020. It built upon the previous deception paradigm. They found that 42.9% of participants in the United States falsely pleaded guilty. They further found that 58.5% of American participants also falsely implicated another student as the instigator of the cheating.

Where participants were required to identify who instigated the cheating and to testify against that person in an official proceeding, 65.8% of innocent participants pleaded guilty. Astoundingly, 52% of those students identified the other student as the cheater. “[M]ost troubling, 88 percent were willing to testify that cheating had occurred, and that the other student was involved. Again, of course, there was no cheating in these cases, yet participants were willing to state an untruth during an official proceeding in return for the benefits of the bargain that had been offered.”

These findings cast considerable doubt upon the American justice system’s tolerance and encouragement of negotiated pleas in criminal cases. While there was no evidence to support the overbearing of an innocent defendant’s will in 1970, there is now scientific evidence to argue the current plea bargaining system is illegitimate and has no place in a country that has established the core right of a jury trial in its Constitution.

Plea bargains came to prominence in the face of Prohibition, which was a time where Courts became overwhelmed with a new class of crimes as our federal government delved into legislating morality. The last five decades has seen a vast ramp-up in the criminal code. Across the country, states and the federal government have created new crimes and increased what was once misdemeanor offenses to felonies. This ramp up has become easier because of the plea bargaining system, for it has allowed the courts to dispose of cases more quickly and at less cost.

The cost to society at large and defendants as individuals is huge. For society, the “Get Tough on Crime” era of the late 1980s, 1990s, and early 2000s resulted in not only increased volumes of the criminal code, it created the mass incarceration movement that resulted in the United States having the highest per capita incarceration rate in the world. This costs states hundreds of millions, and in many cases billions, of dollars annually. In Florida, the largest state agency is its corrections department, with an annual budget of $2.91 billion in FY 2021-2022.

For individuals, the stigma of a felony conviction is traumatizing. Such a conviction can often start with a probation sentence or years in prison. Either way, a felony conviction is a serious black mark in the eyes of many employers. While innocent until proven guilty is an underlying premise of American justice, once found guilty of a felony, you are always a felon. That often equates to being considered a lesser citizen, and in some states that can mean the loss of the right to vote or restrictions on certain classes of employment, even where the conviction had nothing to do with the activity underlying the crime.

As Justice Anthony Kennedy wrote in the 2012 case of Lafler v. Cooper, 566 U.S. 156 (2012), “criminal justice today is for the most part a system of pleas, not a system of trial.” He said that “it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” Yet, the “horse trading” that goes on between prosecutors and defense attorneys is largely unregulated and carried out in secret.

President John Adams once declared that representative government and the right to trial are “the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

As we get further into the sixth decade of SCOTUS sanctioned plea bargaining, civil rights advocates and defense attorneys should feel compelled to use the new research to ask courts to reconsider whether they should continue to tolerate and encourage plea bargaining. Once apprised of the new scientific evidence, courts may reasonably conclude that plea bargains are a cancer that has infected the heart and lungs of liberty, resulting in the virtual death of the right to a jury trial. 

Source: For the Defense, Vol. 6, Issue 2 (a publication of the Pennsylvania Association of Criminal Defense Lawyers)

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