Punishing Protestations of Innocence: Denying Responsibility and Its Consequences
Givelber, Daniel, American Criminal Law Review
Could a state legislature provide that the penalty for every criminal offense to which a defendant pleads guilty is to be one-half the penalty to be imposed upon a defendant convicted of the same offense after a not-guilty plea? I would suppose that such legislation would be unconstitutional under United States v. Jackson.(1)
Consider the following exchange:
Erdmann walks to the far end of the cell and Santiago meets him at the bars. Erdmann puts his toe on a cross strip between the bars and balances Santiago's folder and papers on his knee. He takes out a Lucky Strike, lights it and inhales. Santiago watches, and then a sudden rush of words starts violently from his mouth. Erdmann silences him. "First let me find out what I have to know," he says calmly, "and then you can talk as much as you want." Santiago is standing next to a chest-high, steel-plate partition. On the other side of it, a toilet flushes. A few steps away, Rodriguez is talking through the bars to his lawyer, "If you didn't do anything wrong," Erdmann says to Santiago, "then there's no point even discussing this. You'll go to trial."
Santiago nods desperately, "I ain't done nothing! I was asleep! I never been in trouble before." This is the first time since his initial interview seven months ago that he has had a chance to tell his story to a lawyer, and he is frantic to get it all out. Erdmann cannot stop the torrent, and now he does not try. "I never been arrested," Santiago shouts, "never been to jail, never been in no trouble, no trouble, nothing. We just asleep in the apartment and the police break in and grab us out of bed and take us, we ain't done nothing. I never been in trouble, I never saw this man before, and he says we did it. I don't even know what we did, and I been here 10 months, I don't see no lawyer or nothing, I ain't had a shower in two months, we locked up 24 hours a day. I got no shave, no hot food, I ain't never been like this before, I can't stand it. I'm going to kill myself, I got to get out, I ain't--"
Now Erdmann interrupts, icily calm, speaking very slowly, foot on the cross strip, drawing on his cigarette. "Well, it's very simple. Either you're guilty or you're not. If you're guilty of anything you can take the plea and they'll give you a year, and under the circumstances that's a very good plea and you ought to take it. If you're not guilty, you have to go to trial."
"I'm not guilty." He says it fast, nodding, sure of that.
"Then you should go to trial. But the jury is going to hear that the cop followed you into the building, the super sent him to apartment #-A, he arrested you there, and the man identified you in the hospital. If they find you guilty, you might get 15 years." Santiago is unimpressed with all of that.
"I'm innocent. I didn't do nothing. But I got to get out of here. I got to--."
"Well, if you did do anything and you are a little guilty, they'll give you time served and you'll walk."
"That's more like it. Today? I walk today?"
"If you are guilty of something and you take the plea."
"I'll take the plea. But I didn't do nothing."
"Then you'll have to stay in and go to trial."
"When will that be?"
"In a couple of months. May be longer." Santiago has a grip on the bars.
"You mean if I'm guilty I get out today?"
"Yes." Someone is urinating on the other side of the partition.
"But if I'm innocent, I got to stay in?"
"That's right." The toilet flushes. It's too much for Santiago. He lets go of the bars, takes a step back, shakes his head, turns around and comes quickly back to the bars.
Forcing an accused to chose between immediate freedom in return for a guilty plea and continued incarceration in return for a claim of innocence seems perverse. We claim to value the protection of the innocent ahead of the conviction of the guilty, yet the opposite dynamic appears to be at work in the vignette quoted above, a vignette repeated each time the defendant is offered "time served" in return for a plea. …