In the classic game-theory “Prisoner’s Dilemma,” the puzzle is that two suspects questioned separately may end up getting harsher punishment when they both cooperate with law enforcement and implicate their accomplice than if they each stay silent – even though it appears they will get more lenient treatment if they cooperate.

The normal game is described in detail in Wikipedia:

A real life version of this is the innocent defendant’s dilemma – a defendant who pleads guilty or no contest in return for a more lenient sentence, while maintaining their innocence – an “Alford” plea – may end up facing harsher treatment later on in the process than a defendant who is factually guilty and is therefore able to truthfully express remorse in return for more favorable outcomes in probation, parole, or other collateral consequence contexts.

We know for a fact from the evolution of DNA testing and the popular scope of “Innocence Project” investigations that innocent defendants do plead guilty. Those cases are almost always serious felonies, so it is hard to know the real extent of the problem or practice in the criminal justice system as a whole, but in a 2013 study published in the Journal of Criminal Law and Criminology – “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem”, (Volume 103, Issue 1) a controlled experiment found that more than 50% of a sample of college students were willing to falsely admit guilt for a perceived benefit.

That finding makes an interesting bookend to a paper in the Missouri Law Review – “Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea” (68 Missouri Law Review 1 (2003)) discussing how the legal system assumes and allows innocent defendants to plead guilty – an “Alford” plea – or nolo contendere, but then assumes guilt for post-sentencing, rehabilitation, and other collateral consequence purposes. As the authors of that article point out, because of the lack of “remorse” that goes with a continuing claim of innocence, those defendants may be treated more harshly after the Alford or nolo plea than others who are in fact  guilty of criminal conduct and are able to express remorse and regret in return for favorable treatment in probation, parole, or other collateral consequence contexts:

“Availing oneself of an Alford plea may result in a stiffer sentence than that imposed on someone who merely pleads guilty…Courts have consistently upheld sentence aggravation for defendants who have pled guilty, but maintained their innocence based on their “lack of remorse.” In addition, courts have revoked defendants’ probation because after utilizing the Alford plea and asserting their innocence, they fail to admit their offense as part of a probation-mandated counseling program. Finally, courts have upheld the denial of parole to defendants who have utilized the Alford plea, professed their innocence, and then failed to admit their guilt while in prison.”

Just one more small example of how the over-criminalization and over-charging that drive our plea-bargain based system of criminal adjudication leads to systemic injustice and hypocrisy.