“Why Innocent People Plead Guilty,” Redux

The Atlantic discusses the problem with plea bargaining: excessive prosecutorial power and over criminalization result in innocent people pleading guilty. The National Registry of Exonerations reports that of 2,006 recorded exonerations since the project started keeping track in 1989, 362 of those, or 18 percent, were based on guilty pleas.

The article discusses some possible solutions to make plea bargaining either more accountable or less common. They suggest the process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right.

1: Regulate the process. “Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea.

2. More trials.  A half-step in this direction has long been practiced in Philadelphia, where bench trials—before a judge but no jury—are common. By avoiding the jury-selection process, known as voir dire, bench trials dramatically shorten the length of the proceedings while a defendant’s guilt must still be proven beyond a reasonable doubt. In 2015, excluding cases that were dismissed, only 72 percent of criminal defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a bench trial.


3. Expand the scope of bargaining. John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?

“It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.”

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