The Innocence Effect

By Gazal-Ayal, Oren; Tor, Avishalom | Duke Law Journal, November 2012 | Go to article overview

The Innocence Effect


Gazal-Ayal, Oren, Tor, Avishalom, Duke Law Journal


ABSTRACT

Nearly all felony convictions--about 95 percent--follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated. We provide varied empirical evidence for the hitherto neglected "innocence effect," revealing that innocents are significantly less likely to accept plea offers that appear attractive to similarly situated guilty defendants.

The Article further explores the psychological causes of the innocence effect and examines its implications for plea bargaining. Positively, we identify the striking "cost of innocence," wherein innocents suffer harsher average sanctions than similarly situated guilty defendants. Yet our findings also show that the innocence effect directly causes an overrepresentation of the guilty among plea bargainers and an overrepresentation of the innocent among those who choose trial In this way, the innocence effect beneficially reduces the rate of wrongful convictions--including accepted plea bargains-even when compared to a system that does not allow plea bargaining. Normatively, our analysis finds that both detractors and supporters of plea bargaining should reevaluate, if not completely reverse, their long-held positions to account for the causes and consequences of the innocence effect. The Article concludes by outlining two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether by accounting for the innocence effect.

TABLE OF CONTENTS

Introduction
I.   Evidence
     A. Post-Plea Interviews
     B. Exoneration Statistics
     C. The Tulia Dataset
     D. Experimental Evidence
II.  Causes
     A. Alternative Accounts
     B. Psychological Insights
        1. Beliefs and Preferences in the Shadow of Trial
        2. Diverging Beliefs
        3. Diverging Preferences
     C. Experimental Evidence
III. Implications
     A. Positive Implications
        1. The Cost of Innocence
        2. Guilty Bargainers
        3. Innocents on Trial
        4. A Diminished Rate of Wrongful Convictions
     B. Normative Implications
        1. Plea Detraction for Plea Supporters
        2. Plea Support for Plea Detractors
        3. Restrictions on Plea Offers
        4. Agreements on a Simplified Criminal Process ..
Conclusion

INTRODUCTION

Plea bargaining dominates the criminal-justice landscape in the United States. About 95 percent of felony convictions follow guilty pleas, (1) and most guilty pleas result from plea bargaining. (2) Despite their ubiquity and key role in facilitating convictions, however, the desirability of plea bargains is hotly debated, not least because plea bargains can lead innocent defendants to plead guilty. (3)

Most scholars--whether detractors or supporters of this practice--examine plea bargaining as a decision process that defendants must undertake in the looming shadow of trial. (4) Plea bargains are agreements wherein prosecutors offer defendants a reduction in criminal charges or sentence recommendations or in which courts offer sentence concessions in return for guilty pleas. When faced with a plea offer, a defendant must determine whether he or she finds its certain but discounted sanction more attractive than trial. In the simplest shadow-of-trial model, for example, defendants accept plea bargains that offer sanctions lower than the expected value of trial, which is calculated as the anticipated sentence in the case of a conviction at trial multiplied by the probability of such a conviction. …

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