by Matt Clarke

An article published in the American University Law Review examines victims of coercive plea bargaining using extensive data from psychological studies and surveys. In doing so, it goes beyond the obvious victims—innocent defendants who are coerced into pleading guilty to a crime they did not commit—to include the less obvious victims, viz., innocent people falsely testified against by other innocent people who were coerced into accepting a plea bargain conditioned on implicating a third-­party. It even discusses victims of crimes who never receive justice because an innocent person was coerced into pleading guilty and victims of additional crimes committed by the actual perpetrators while someone else is doing their time.

Surprisingly, academic psychological studies show a large percentage of innocent people are willing to plead guilty to something they did not do when placed in mildly coercive circumstances, and many of them are willing to implicate other innocent people to receive the benefits of the “plea bargain.”

All of the article’s authors were members of the American Bar Association Criminal Justice Section’s Task Force on Plea Bargaining, and most of the article is based on the 2023 Task Force Report that directly addressed coercive plea bargaining.

Plea bargaining is a relatively new American creation that first appeared around the time of the Civil War and significantly expanded during Prohibition when prosecutors starting claiming that the only way to meet the eightfold increase in federal prosecutions since 1914 was “for United States Attorneys to make bargains with defendants or their counsel whereby defendants plead guilty to minor offenses and escape with light penalties.”

“The Supreme Court’s 1970 decision in Brady v. United States [397 U.S. 742 (1970)] was a pivotal moment for plea bargaining. The Brady decision legitimized the concept of plea bargaining if the guilty plea was voluntary and intelligent and offers of leniency or threats did not ‘overbear the will’ of the defendant.”

At the time of the Brady decision, many courts and lawyers “believed plea bargaining would entice the guilty, but not overbear the will of the innocent.” Beliefs such as this that are not supported—or are even contradicted—by facts yet are accepted by judges are called “judicial fiction.” A second judicial fiction was the belief that the presence of a competent attorney would prevent the innocent from pleading guilty even when faced with coercion. The Supreme Court had so much faith in the presence of counsel that it wrote, “a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61 (1975).

As it turned out, research would show both of these judicial fictions to be false. Many innocent people will plead guilty when faced with the pressures inherent in the criminal justice system, and attorneys do not protect against a false guilty plea. In fact, sometimes they recommend or even encourage that an innocent client plead guilty.

There is indisputable evidence proving that innocent defendants plead guilty. Unquestionable scientific evidence proves it. For instance, “a 2015 report from the National Registry of Exonerations on the issue of Innocents Who Plead Guilty” showed that 15% of the first 1,700 exonerees pleaded guilty to an offense they did not commit. Almost 30% of the new cases added to the registry in 2021 involved false guilty pleas.

“In some types of cases, the rates of false pleas are astonishingly high.” For example, 66% of guilty plea exonerations for drug crimes involved a false guilty plea.

The report noted that there were 71 drug crime exonerations in Harris County, Texas, between 2014 and 2021, and all of them involved false guilty pleas. Further, they were only discovered because a then-­newly-­elected district attorney insisted on having the drug lab test every sample of purported drugs that formed the basis of an arrest, even if the defendant had already pleaded guilty.

Realizing that false guilty pleas were far from rare, psychologists Vanessa A. Edkins and Lucian E. Dervan developed studies to determine the likelihood that an innocent defendant would falsely plead guilty in return for the benefits of a bargain. The study’s participants were students who were told they were participating in a study that compared individual work to group work. In reality, it was a study of how they would react to false accusations of cheating when a plea bargain was offered.

The study was designed so that about half of the students were enticed to cheat by another participant, and the other half were not. All were accused of cheating and told that they could confess to cheating and would merely lose the compensation they had been promised for participating in the study, or if they refused to confess, they would be referred to an “Academic Review Board” for a “trial” during which a student would have the right to testify and present evidence. However, in addition to losing their compensation, their facility advisor would be notified of the cheating, and they would be required to attend an ethics course should the board find them guilty.

In this scenario, 89% of guilty participants and 56% of innocent participants took the plea offer. Additional studies done since then using “real stakes” that are not merely hypothetical have confirmed false guilty plea rates at or near 50%.

In 2021, psychologists Kelsey S. Henderson and Lora M. Levett took the Dervan and Edkins cheating paradigm and modified it to account for the presence of a counselor during the decision-­making process. When no advocate was present, participants falsely pleaded guilty 35% of the time. When an advocate participated and recommended proceeding to trial, the false guilty plea rate dropped to 4%. However, when the advocate provided only educational information regarding the available options, the false guilty plea rate climbed to 47%. Even worse, when the advocate recommended pleading guilty, 58% of the innocent students did so. Other studies have shown a similar impact of counsel is magnified when the participants are juveniles.

One might wonder if this reflects a real-­world situation. Would an attorney really advise an innocent client to plead guilty? Surveys of attorneys have answered that question with a resounding yes.

In a 2018 study of attorney perceptions of guilty pleas, attorneys from nine U.S. states were interviewed and asked whether there were cases in the current system where an innocent defendant should plead guilty—78% said yes. “When asked whether they had ever been involved in a case where a client chose to plead guilty despite maintaining their innocence, almost ninety percent said yes. Not only were the attorneys aware of this occurring, almost forty-­five percent admitted to having advised clients they believed were innocent to accept a favorable plea agreement. In fact, even where the defense attorney felt there was less than a fifty percent chance of conviction, a significant portion stated they would recommend to an innocent client to plead guilty.”

Why would an innocent criminal defendant plead guilty or a defense attorney advise an innocent client to plead guilty? In a word, coercion.

Coercion is the mainstay of the pre-­trial criminal justice system. The core tools of coercion are jailing, overcharging, and the threat of excessive sentences. Many people cannot take the uncertainty of the process and are willing to plead guilty just to end it. Similarly, some do so to reduce the risk they are facing, regardless of factual innocence. This actually means they have little faith in the system actually finding the truth.

Jailing is probably the most common and strongest form of coercion. A person who is jailed and unable to afford bond is at risk of losing a job, a car, a home, and/or custody of a child. This process of loss begins within days of jailing. This is one of the first places where the affluent are treated differently by the criminal justice system. They can afford bail, if a bond is set. Thus, the coercion of jailing is lessened for them while the poor remain in jail and experience loss after loss after loss.

It is little wonder that a person in jail on a minor charge jumps at the chance when told “you can plead guilty and be out today (with a fine or probation) or wait in jail another two years for your trial.” Even those who have not experienced the loss of a job, car, home, or child have lost their freedom. Who would not wish for it to be immediately restored, regardless of guilt or innocence?

It is no coincidence that nearly all of the innocent Harris County drug defendants who pleaded guilty were in the jail. According to multiple studies, being in jail triples the rate of innocent individuals who plead guilty. Further, jailed innocent defendants tended to plead guilty to worse offers, and many say they would have gone to trial had they not been incarcerated.

“Many factors may impact a defendant’s decision to plead guilty: assessments [of] the likelihood of success at trial, a desire for finality, the impact of collateral consequences, risk aversion, temporal discounting, and familial considerations, among others. However, as discussed above, the three factors that appear most influential are sentencing differentials, the advice of counsel, and pretrial detention.”

Defendants with public defenders tend to falsely plead guilty at a higher rate than those with private attorneys. Public defenders may recommend false guilty pleas more often due to limited resources available in their underfunded offices and staggering caseloads. Like bail, this is an aspect of the criminal justice system that clearly favors the more affluent defendants.

Race may also affect the decision to falsely plead guilty. In a 2011 study by Vanessa A. Edkins, “defense attorneys from multiple jurisdictions were asked to make recommendations for defendants considering mock plea offers. The study found that when the defendant was depicted as Black in the hypothetical, defense counsel was more likely to recommend the defendant take a plea and more likely to recommend a plea that included a custodial sentence.”

It is easy to forget the price paid by some people for coerced false guilty pleas. Arlington, Virginia police focused on David Vasquez, then-­38, who had an IQ lower than 70, when investigating the 1984 murder of 32-­year-­old attorney Carolyn Jean Hamm because a witness thought they saw him in the area the day of the murder and described him as “creepy” and “strange.” Police questioned him for hours without giving him the constitutionally required Miranda warnings. Their interrogation techniques included fabricating evidence against Vasquez and feeding him information about the crime scene as they pressured him to confess. A worn-­down Vasquez finally did so but did not know the actual details of the crime, so police kept correcting him.

After realizing that they had failed to give the Miranda warnings, police questioned him again. During the interview, Vasquez recounted a “dream” of him killing a woman. Both confessions were thrown out, but a third one, given after Vasquez signed a Miranda warning card, was ruled admissible. However, semen recovered from the crime scene did not match Vasquez’s blood type, leading prosecutors to hypothesize two accomplices.

As trial approached, prosecutors offered to take the death penalty off the table in exchange for an Alford plea (pleading guilty but maintaining innocence). On advice of counsel, Vasquez took the plea deal and was sentenced to 20 years in prison.

Three years later, another woman was raped and murdered in a similar fashion in the same neighborhood. Different police detectives reached out to Vasquez believing an accomplice of his was involved, but he maintained his innocence. They soon realized that an injustice had been done. They discovered that, while Vasquez was in prison, three other women bad been raped and murdered using a similar tin cord to strangle them just like Hamm. Then they found 10 women who had survived similar attacks during the same period.

Police eventually used DNA testing to identify Timothy Spencer as the perpetrator of all of the crimes, including Hamm’s murder. He became known as the “Southside Strangler.” Vasquez was pardoned in 1989.

Why did Vasquez plead guilty to a horrific crime he did not commit? The answer lies in the U.S. Supreme Court’s observation that “criminal justice today is for the most part a system of pleas, not a system of trials,” Lafler v. Cooper, 566 U.S. 156 (2012). It is estimated that, in the federal system, approximately 75% of pleas are induced by threats of greater punishment if a defendant proceeds to trial and offers of leniency in return for waiving the constitutionally protected right to trial or both.

Is this not perilously close to punishing defendants for exercising their constitutional right to a trial by jury? In a word, yes! And the punishment can be costly. “One analysis by the Vera Institute of Justice in 2020 found that the odds of incarceration were 2.7 times higher for those who exercised their right to trial and that the sentences of these individuals were fifty-­seven percent longer than the sentences of those who accepted guilty pleas. Another study of federal sentencing practices released in 2019 demonstrated that defendants convicted at trial faced a two to six times greater likelihood of being incarcerated.”

An example of this type of coercion is presented by “Chris Ochoa, who falsely pleaded guilty for rape and murder in Texas in 1989. After his plea, Mr. Ochoa was sentenced to life in prison. Thirteen years later, in 2002, DNA evidence exonerated him.”

“In Mr. Ochoa’s case, he was threatened with the death penalty if he did not plead guilty. His attorney encouraged him to accept the plea offer, but he maintained his innocence and refused. It was only after his mother became ill from the stress of the case and asked him to accept the offer that he relented.” Ochoa’s case highlights the effect of sentencing differentials and the role of counsel in securing false guilty pleas.

Ochoa’s case also identifies yet another type of victim of coercive plea bargaining—the family of the person being coerced into pleading guilty. In this case, it was Ochoa’s mother, who became physically ill due to the stress of having an innocent son facing the death penalty.

The fact that defendants are coerced into accepting plea bargains they do not want to take is well known to the judiciary. Chief Justice John Roberts has even acknowledged it in Lee v. United States, 582 U.S. 357 (2017), in which he noted that the “determinative issue” in Lee’s acceptance of a plea bargain rather than going to trial, as he desired, was his attorney’s incorrect assurance that he would be deported if found guilty at trial but not if he accepted the plea bargain. Unfortunately, rather than address the faults in the plea-­bargaining system in general, the Supreme Court merely blamed defense counsel for giving Lee false information.

Although plea bargaining is an American innovation, it has spread to some other countries. Traditionally, plea bargains were not permitted in Japan, but in 2016, the Japanese Diet passed a law authorizing limited plea bargaining starting in 2018. In an attempt to reduce the likelihood of false guilty pleas, the law only permitted plea bargains for certain types of group criminal activity and then only in exchange for the defendant providing information about a crime committed by a third party.

The assumption was that, “while defendants might be willing to falsely implicate themselves in return for a bargain, people would not be willing to testify falsely against other innocents in a formal proceeding to secure the benefits of those bargains. In 2016, the Japan Foundation for Global Partnership provided researchers a grant to test whether this assumption was correct.” To do so, researchers conducted a modified version of the cheating paradigm simultaneously in the U.S., Japan, and South Korea.

The modified paradigm still included students falsely accused of cheating and a choice between a trial-­like procedure with greater consequences than accepting the plea bargain, and it included a role for a counselor. It differed from prior studies in that the role of the counselor was increased, the stigma consequences were more consistent regardless of whether the plea deal was accepted or rejected, and it tested both whether students were willing to confess their own misconduct but also whether they were willing to indicate who instigated the misconduct and whether they were willing to provide evidence against the other student they were paired with at a formal hearing, even if both students were innocent.

To determine the effect of severity of punishment on the likelihood of the innocent pleading guilty, there were two groups of participants, one facing much harsher punishment than the other. Further, a student seeking to take advantage of the plea bargain was required to implicate the other student. “The results of the study showed that the revised plea system still had significant negative effects on the reliability of guilty pleas.”

There were similar results in all three countries. In the U.S. study, the harshness of the punishment had little effect on the guilty pleas. For the harsher punishment group, 73.1% of the guilty and 45.9% of the innocent pleaded guilty. For the more lenient punishment group, 73.1% of the guilty and 40% of the innocent pleaded guilty.

The study had two versions. In the first version, students were merely required to indicate who initiated the cheating on a sheet of paper to receive the plea bargain. 81.3% of the guilty and 58.6% of the innocent did so. In the second version, they were told they would be required to testify. 65.8% of the innocent agreed to do so with 52% of the innocent stating the other student initiated the cheating (that did not occur).

“Both versions of the study strongly indicate that Japan’s attempt at creating a more reliable system may have succeeded in modestly reducing false guilty pleas, but a significant innocence problem will persist.”

This proclivity of people to falsely plead guilty and implicate other innocents when faced with severe punishment, such as the death penalty, has serious consequences. For instance, when police in Hattiesburg, Mississippi, for no clear reason, focused on Larry Ruffin as a suspect in the 1979 rape and murder of Eva Gail Patterson, they used “racially-­charged threats and violence” to coerce his confession. When he recanted his confession, they picked up Bobby Ray Dixon and Phillips Bivens to coerce confessions from them. Then prosecutors threatened them with the death penalty if they didn’t plead guilty and testify against Ruffin at his trial.

Dixon and Bivens testified against Ruffin, who was convicted and given a life sentence. In 2010, DNA testing of a semen sample recovered from Patterson’s body showed the perpetrator was Andrew Harris while excluding Ruffin, Dixon, and Bivens, who were all exonerated based on the new DNA evidence.

The exoneration did not help Ruffin as he had already died in prison in 2002. Dixon died the year of his exoneration. Bivens died in 2014. None of them lived long enough to receive compensation. Mississippi allotted their estates $50,000 in 2015, about $1,612 per year or $4.41 for each day they were wrongfully imprisoned.

Harris, who lived near Patterson in 1979 but was never identified as a suspect, was easily located. He was in prison for another rape he committed after he murdered Patterson. There were likely others, and each one of them was a victim of the coercive plea-­bargaining system that allowed their assailant to escape justice for murdering Patterson for more than three decades.

Situations such as this are hardly unique. In fact, coercive plea bargaining has resulted in the creation of a large group of people willing to give false testimony against someone else in exchange for leniency—jailhouse informants. Notoriously unreliable and predatory, these “snitches” often gain information about a case from police or media and use it to invent testimony.

Although using accomplice testimony differs somewhat from the use of jailhouse snitch testimony, it is still a questionable practice. As one court noted, “[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence, but courts hold that such a witness may testify so long as the government’s bargain with him is fully ventilated so that the jury can evaluate his credibility.” United States v. Cervantes-­Pacheco, 826 F.2d 310 (5th Cir. 1987).

The study concludes that it is important to acknowledge that innocent people plead guilty and lift the many restrictions against them receiving post-­conviction relief. It proposes limiting the sentencing differentials between plea bargains and trial sentences and several other reforms that would be difficult to implement or face mountainous opposition from prosecutors and judges. It concludes that “[c]oercive plea bargaining is a threat to the legitimacy of the criminal justice system” but is unwilling to draw the obvious conclusion that plea bargaining should be eliminated if it poses such a threat.   

Source: “Victims of Coercive Plea Bargaining: Defendants Who Give False Testimony For False Pleas,” 72 Am. U. L. Rev. 1919 (Aug. 2023)

Subscribe today

Already a subscriber? Login