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.

Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:

“Trial by jury has been replaced by a “system of  guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”

The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.

Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.

Excellent op-ed, “Turn Prisons Into Colleges”  by Harvard Professor Elizabeth Hinton in the New York Times this Tuesday. Hinton argues that education is a civil right that improves society and increases civic engagement, and that expanding educational opportunities to prisoners will reduce recidivism and government spending. She quotes a 2013 study from RAND showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Currently, the Senate Committee on Health, Education, Labor and Pensions is consideringpermanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”

Hinton’s conclusion:

 “College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery. Expanding prison education programs would link those two ventures in a forward-thinking way. It’s clear that education will continue to be a central part of criminal justice reform. The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”