Sunday, March 1, 2015

When being rational is intolerable

Jefferson described trial by jury as “the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”[1] It is a bulwark against tyranny – speedy public trial by a jury of one’s peers limits the opportunity for abuse which thrives behind closed doors, in private bargaining, absent independent oversight, when the power of the state is directed at a single individual.

The US is unique among other liberal democracies to have embraced plea bargaining as the principal means of settling criminal cases, and with such fervor.  By 2013 97% of felony cases at the federal level were settled by plea agreements. That means only 3% of felony cases ever go to trial. Recent statistics indicate that the average sentence for a plea deal is 5.6 years, while the average sentence for conviction at trial on the same charge is 16 years. Federal data from 2004 indicates the likelihood of conviction at trial averages at 68% (with a low of 45% for assault, 70% for murder, and high of 74% for vehicle theft).[2]

From the point of view of the prosecutor, securing a plea arrangement is ideal. Plea arrangements typically trade a lesser charge than the evidence might support in exchange for a guilty plea from the accused. This ensures that the guilty is punished for their crime, but spares the state the costs of trial. Typically, the longer an accused refuses a plea offer, the more severe the charge becomes. So, it is in the interest of the accused to plead guilty earlier rather than later.

From the point of view of the accused, the offer of a plea may also be ideal, a release from the burden of having to fight a conviction she is very likely to lose. Pleading guilty to a lesser charge is preferable to risking a mandatory minimum sentence on a more severe charge. She has the burden of serving some time, but not as much as would be the case were she to lose at trial under mandatory sentencing. For the guilty accused, this can be very sweet indeed.

What if the accused is factually innocent?

The US criminal justice system has become such that even innocent accused are irrational not to plead guilty to a crime they did not commit. The risk of trial is great, especially given the power of the prosecutor to determine the charge, recommend bail and at what cost, and to determine the direction of the investigation. Public defenders, what most felony accused rely upon for representation, are at a serious disadvantage in all regards. Death row exonerations indicate a false conviction rate of 4.1% at trial.[3] Unlike convictions at trial, plea bargains are rarely appealed – the basis for an appeal being moot in the presence of a “confession” in a plea agreement.  However, according to the Innocence Project, “more than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.”[4]  With a prison population of over 2.2 million, even a conservative estimate of 3% indicates 66,000 innocent people are imprisoned for crimes they did not commit.

For the innocent accused, she knows the risk of going to trial is great. She knows if she is convicted at trial, her sentence would likely be triple the sentence offered in a plea, more if she takes a plea early enough. She also knows that, under mandatory sentencing, the judge has no room to mitigate the sentence. She also knows that the vast majority of convictions come on circumstantial evidence and that, if there is a witness, he is more than likely to misidentify her as the guilty party. If the accused doesn’t know this, her attorney certainly does. She knows that if she opts for a trial, it will be months (sometimes years) away, time which she will spend in jail awaiting trial, or if she can afford it, on bail.

Surely it cannot be reasonable for a society to accept false guilty pleas at this rate, if at all.

For one thing, it means that the factually guilty party has not been caught, convicted and punished. For every crime settled by plea agreement of an innocent, there is a crime unsolved and criminal unpunished and undeterred.

For another, it raises questions about the fairness of the criminal justice system, making a myth of the idea of “having one’s day in court.” If the risk of trial is such as to render it in one’s rational self-interest to plead guilty, then that day in court comes at a huge personal and financial cost and great risk. That seems not to have been the idea behind the 6th Amendment guarantee of a speedy public trial by peers.

Further, too many members of the community believe themselves immune to this problem. But, by the most conservative estimate the prisons are filled with individuals who once believed the same about themselves. It is too easy to stick one’s head in the sand in the belief that only bad people are arrested in the first place, so if the accused isn’t guilty of this crime, then they are surely guilty of something else. Best to have them off the streets regardless. This belief might soothe, until the police and prosecutor knock at one’s own door.

There is something fundamentally wrong about this. The structure of the criminal justice system in the US renders it rational to do what is completely unreasonable to do. It cannot be reasonable, nor tolerable, to expect someone to profess guilt when they are innocent simply to avoid a worse outcome. And, when it is… well, that is the clearest indication that there is something gravely wrong with the institution and with the society which tolerates it.

Christina Bellon
Department of Philosophy
Sacramento State

[1] Jefferson, “Letter to Thomas Paine, 11 July 1789”, in The Writings of Thomas Jefferson, vol. III, Ed. H.A. Washington, New York: 1859, p. 71; available at
[2] Bureau of Justice Statistics, “Quick Facts: What is the Probability of Conviction for Felony Defendants?” accessed Mar 1, 2015. See
[3] Gross, et. al., “Rate of false conviction of criminal defendants who are sentenced to death,” Proceedings of the National Academy of Sciences, vol: 111, no. 20, 7230-7235. Available at
[4] Innocence Project, “Causes of Wrongful Convictions: False Confessions or Admissions”, accessed Mar 1, 2015. See more at:


  1. Chris, thanks a lot for this. I've never liked plea-bargaining and you've just explained to me why. I'm disinclined to defend it, but if I had to I might say that a big part of the problem you identify lies in the rational expectation that that the factually innocent will be wrongly convicted. If this is an accurate perception, then the problem is the system. If it is an inaccurate one, then the problem is education. But even if this is true, it seems like the correct reply here is that the dominance of plea-bargaining actually removes the incentive for improving the process in either way. Plea-bargaining works best when the system sucks, in other words. And, of course maybe that's the best explanation for why we have it.

    1. Randy, the risk is exactly the risk of wrongful conviction, and it is very real. The federal numbers for 2004 (why the Feds have data only as recent as 2004, is another curiosity) among felony defendants who went to trial within one year (only 89%, so 11% took longer than one year to go to trial), 68% were convicted of the crime with which they were charged. We know that not all the convicted were factually-guilty and not all the acquitted were factually-innocent. Just on death penalty cases, where there is generally a higher degree of scrutiny and oversight, with both sides being well-prepared (mostly), some estimates put the wrongful conviction numbers at 25% -- i.e., 25% of those convicted in death penalty cases are factually innocent. The data isn't clear on acquittals and what percentage of innocent defendants that 25% represents. It seems that the risk of conviction at trial is high for an innocent accused.

      I agree that plea bargaining, especially the degree to which it is conducted in this country, masks some serious problems with the criminal justice system. It's not merely a matter of perception. My analysis doesn't address race, but the situation for African Americans, for example, is even worse with the likelihood of conviction at trial even higher than for a white defendant. Recent work on disenfranchisement of the African American community as a result of felony convictions indicates the problem is real and it is multiple. There's also evidence which suggests prosecutors are less inclined to offer non-felony level plea deals to African American defendants even as a stating bargaining point. All of this is not just a factor of poorly supporter or just poorly capable public defenders, but also reliance upon faulty evidence, securing convictions on circumstantial evidence, racism, the legacy of poverty, disparate sentencing structures, excessively punitive sentencing guidelines and minimums, etc, etc.

  2. Chris, you avoid saying what you recommend doing about the problem of plea bargaining. If you are in favor of eliminating it completely, then what about the consequences? Can you envision a better alternative?

    1. Brad, the history of plea bargaining seems to correlate with significant changes in US social and political changes. Most recently with the elevation in the 1970s and 80s of many non-felony crimes into felony crimes (which typically impose jail time rather than fines), most significantly in the war on drugs. It also spikes again in the 1980s and 1990s with the introduction of mandatory minimum sentencing and then again with mandatory sentencing guidelines, both of which are legislative responses to the apparent lackadaisical attitude of the judiciary to crime and punishment. The get touch on crime laws, which include California's 3-Strikes laws, had the combined effect of over-whelming the court system.

      As a remedy for over-crowded criminal courts, plea bargaining makes sense. However, what has once made sense in practical terms now makes no sense in terms of justice. The atrocious under-funding of the judiciary and course systems, coupled with the excessively punitive system of penalties and classifications of crimes -- including mere use and possession of mild recreational drugs -- has left the US with much less than a stellar criminal justice system. For people who are guilty, please bargaining is not a bad alternative to a fairly high probability conviction under mandatory minimum sentencing. That works for all concerned, the criminal is off the streets, the prosecutor saves the public funds and court time and resources, the defense attorney can move on their next client, and the criminal gets typically a lighter sentence.

      The rub arises when the accused is not guilty. This makes the stink on the system real. Indeed, everyone is, according to the ideals of the US justice system, presumed innocent and has a right to a trial. But the risks of trial are great in these circumstances, and the cost of trial is real for those who can afford an attorney. The risk of conviction at trial is great, regardless of factual innocence, and that comes with a higher sentence than a plea agreement.

      How would I fix it? Well, look at some similarly situated liberal democracies, most of which have not adopted to any extent a plea system. they fund their courts as needed, they adjust their sentencing statues and criminal laws according to the best data on recidivism and crime prevention. Most also treat 'crimes' such as drug possession and use as misdemeanours at worst. But, the US might just be especially criminally inclined, in which case, I would strongly suggest some sort of real oversight of prosecutor discretion. I would also recommend eliminating most of the mandatory minimum sentencing and allow judicial discretion back into the sentencing picture. Most the mandatory minimum sentencing laws were the result of political mis-representation and hyperbole, stirring up the electorate over the apparent inadequacies of criminal punishment. So, educating the populace about the reality of crime, and of the failings of these sorts of efforts, might go along way toward promoting reinvestment in the criminal justice system and a recalibration of sentencing structures. that would be a good start.

  3. It wouldn't eliminate all the problems but it would go a long way to give victims veto power over pleas. Also, end the drug war.

    1. Great post Chris! Quickly getting one's day in court seems very important. Being jailed for years while awaiting trial would be so annoying for an innocent person.

    2. Not a bad idea, Kyle, since most plea agreement offer considerably lower jail time, which victims often are shocked by. This would prompt many more cases to go to trial. However, on it's own this would just return the flood of criminal trials to the courts, which the please system redirect -- plead guilty, go directly to jail, do not stop at court. the implication we've already seen in US recent history is that accused would sit in jail awaiting trial for even longer periods, which is again, a violation of constitutional guarantees of due process. But, it would certainly put pressure on the prosecutor, perhaps even acting as a kind of review over prosecutorial discretion. So, I'd be willing to experiment with it.

  4. Annoying is an understatement, Dan... but yes!