Why Innocent People Plead Guilty

http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/

by colmvp • 12 years ago

324 95 12 years ago

japhyr• 12 years ago

I'm a high school teacher, and we are looking at bringing restorative justice practices into our district. Just starting to dig into the restorative justice framework gives us a stronger way to think about dealing with discipline within a school system.

As I start to have deeper conversations with people well versed in restorative justice, I'm starting to hear really concrete ideas and practices for reforming our justice system in the US.

Edit: To clarify, restorative justice avoids the punitive approach to dealing with crime. Instead, it asks what harm has been done to what relationships when a crime has been committed. The first goal is then to work to restore those relationships. This is an incredibly valuable perspective in schools, where relationships are central to so much of what should be happening in a learning environment. It's a pretty good lens for examining situations in the larger community as well.

One resource, from a school-based perspective: http://www.healthiersf.org/RestorativePractices/

And a more general perspective: http://www.restorativejustice.org/

throw_away• 12 years ago

Also discussed in the most recent This American Life: http://www.thisamericanlife.org/radio-archives/episode/538/i...

kashkhan• 12 years ago

I hope you succeed in changing the system. School for most kids is "prison-lite". Like if you don't show up on time for roll call, you get punished by being held in recess or forced to pick up garbage around the school.

And this is not some third world school I am talking about. This is schools in cupertino, one of the wealthiest and most "progressive" areas in the world.

http://www.sethgodin.com/sg/docs/stopstealingdreamsscreen.pd...

Years ago, five friends and a I were put in charge of a 150 rowdy fifth-graders for a long weekend up in Canada. It was almost impossible to be heard over the din—until I stumbled onto the solution. All we had to say was, “points will be deducted,” and compliance appeared. There weren’t any points and there wasn’t any prize, but merely the threat of lost points was sufficient.

wyager• 12 years ago

School for most kids is "prison-lite".

The parallels are numerous. You are legally compelled show up under threat of violence (although usually targeted at the child's parents, in the form of being arrested). You are not free to leave when you desire. You lose certain basic human rights while you are there (e.g. [1,2,3,4]). You are subject to the arbitrary authority of non-elected persons. Until recently, you were subject to physical violence at the hands of these persons. Social cliques and violence are relatively common. In many situations, self-expression, experimentation, and curiosity is discouraged.

I know, as a child, public school left a bad taste in my mouth for some of these reasons.

[1] Board of Education of Independent School District #92 of Pottawatomie County v. Earls

[2] Bethel School District #43 v. Fraser

[3] New Jersey v. T.L.O.

[4] Morse v. Frederick

barbudorojo• 12 years ago

There are many cases in which one can't restore the harm. If someone dies, you can restore that. Many times the harm is psychological and is not easy to restore. I don't know if restorative justice prevent or diminish the probability of further crimes, but a good justice system employ punishment as an excellent inhibitor of crime. People are sensible to long term sentences in jail.

jMyles6• 12 years ago

I've studied quite a bit of criminal justice and constitutional law, but one thing that still eludes my understanding is the incentive structure.

Why do prosecutors seek to put innocent people in prison? What's in it for them?

iamdave• 12 years ago

Looks great when they try to run for office.

techsupporter• 12 years ago

A combination of "something must be done!" and "well, even if he's later let out he must have been up to no good to have even been arrested."

jdechko• 12 years ago

It makes their job easier. If they have 100 cases to prosecute and they can get 95% to enter a plea deal, now they only have 5 cases to worry about. If 5% of those who plead guilty are actually innocent, the prosecutor doesn't really care because it's not a case he/she has to go to trial over.

baddox• 12 years ago

I think the most basic explanation is that lower crime rates means fewer prosecutors. Prosecutors probably estimate (and probably accurately) that putting people in prison for certain crimes is politically popular. In some cases, I suspect prison and police lobbies can influence things.

tptacek• 12 years ago

Conviction rates are a career metric for prosecutors.

arjie• 12 years ago

A striking incidence of Goodhart's Law: (though it's questionable if this was a good measure in the first place)

When a measure becomes a target, it ceases to be a good measure.

Interestingly, even if we added wrongful conviction rates as a disincentive, it would probably not affect the end result. It isn't impressive being an 80% prosecutor. It's much better to aim to be a 95% prosecutor and take the risk of a wrongful prosecution. Go big or go home.

I wonder if there's a better way of determining if someone is good at a job. I mean, it is natural for us to like people who do really difficult things, but if many people take great risks, there's likely to be at least one who just happens to succeed due to circumstances. Did he succeed because he's better or because there's a 5% chance of succeeding and he just happened to do so? It seems like he succeeded against all odds, but what if that was just pure luck and it seems impressive because we don't see it as throwing a hundred darts (a hundred prosecutors) at a board and seeing one strike the bull's eye (one with no wrongful convictions)?

jMyles6• 12 years ago

Of course it's always presented this way, but do voters really think this way? I surmise that a number of other factors are more important in elections than conviction rates.

And even if that were true, why charge obviously innocent people at all? Not charging them won't affect the conviction proportion.

tedunangst• 12 years ago

This isn't an entirely perverse incentive. For most crimes, I would imagine that prosecuting the correct perpetrator would be the one most likely to result in a conviction.

And rate, vs count, is also the correct metric. Unfortunately, prosecutors are often under a lot of pressure from the public (i.e., us) to put somebody away. What's a prosecutor to do after Nancy Grace tells us who the murderer is?

OffshoreGuy87• 12 years ago

Your question presumes that prosecutors are looking for the truth, right and wrong, innocence and guilt.

They are not.

Their job is to prosecute. Hence we've seen terrible stories about people prosecuted and jailed for years because prosecutors knowingly refuse to turn over exonerating evidence.

Judges are also part of this problem. They are paid by government. Their instructions (Rules of Criminal and Civil Procedure) come from government. They have often worked as prosecutors for the government. So their loyalty is to the government. We don't have an independent judiciary. It's been wholly captured by the government.

Getting to the question as to why the innocent plead guilty, when you're faced with the cost of an attorney it's often cheaper and easier to take a plea than to fight. The stress, emotional and mental toll of a legal fight are horrendous. And there is very little guarantee that a defendant will win.

The deck is stacked against you when you go to court. Prosecutors and judges are not there to have a colloquy about the law, the facts, the issues of the case, nor to debate the motivation and intent of the defendant. The prosecutor is there to win. The judge is there to ensure that the well-oiled machine keeps running and that jurors deliver the needed verdict.

jMyles6• 12 years ago

Their job is to prosecute.

I understand, but how did this become gospel?

termain2• 12 years ago

On paper,the prosectors' job is to seek stice.

acjohnson554• 12 years ago

A truly democratic government also represents the collective will of the people. In America, we don't have a truly democratic government, but I think it's close enough to hold, to the extent that the justice system serves the desire of the people for the appearance of justice. The people can't know whether justice is happening, so its appearance has to substitute for this knowledge. This feedback optimizes the system to provide this appearance. I think we see major shocks when independent research and especially new methodologies for examining evidence (like DNA) disrupt the appearance that the justice is what's actually happening to the expected degree.

ricree• 12 years ago

Your question presumes that prosecutors are looking for the truth, right and wrong, innocence and guilt.
They are not.
Their job is to prosecute

That's not entirely true. Their job (or at least their office's job) is also to decide when and where to seek prosecution. In theory, determining truth and innocence is a significant part of their job.

The trouble is when that runs up against a politicized, failure intolerant culture that would much rather reward a prosecutor with a strong string of wins (however questionable their methods) over one with the courage to simply present the best case they have and let the jury decide on the facts like they are supposed to.

honestcoyote• 12 years ago

If a prosecutor's chief career metric is his conviction rate, then he doesn't have much incentive to reelease exonerating evidence.

I wonder if changing the rules would help. Releasing such evidence and causing the case to collapse would not reduce the conviction percentage. Perhaps it could even be counted as a win, increasing the metric, because justice was done.

twelvechairs• 12 years ago

The core of the adversarial system is that the prosecutor and defense are entirely one-sided, and the court acts as impartial referee. The opposite to this is the inquisitorial system where the court tries to find out information themselves.

ams6110• 12 years ago

Most prosecutors do not seek to put innocent people in prison. Does it happen? Yes, they are people and people are not perfect. Some are far from perfect.

jMyles6• 12 years ago

Most prosecutors do not seek to put innocent people in prison.

I understand that. But some do, and they commit horrific crimes of injustice in so doing. Why?

mikeash• 12 years ago

Because they believe that the accused is guilty.

I think it's interesting that you have so many responses to your comment and none of them propose that possibility. Yes, there are corrupt prosecutors, or prosecutors who just don't care. But I think most of them do care, and think they're doing the right thing. The police won't arrest you unless they think you're probably guilty. The prosecutor won't go after you unless they think you're probably guilty. The evidence points in that direction, or else they wouldn't get far. You may be innocent, but they're not working on that angle. From where they sit, you look guilty, and things like exonerating evidence will be seen through that lens, as a way for a guilty person to go free, not a way for an innocent person to avoid punishment for a crime he didn't commit.

This is simultaneously reassuring (these are regular, good people) and terrifying (how do you fix the system then?).

infinite8s• 12 years ago

That's the whole point of the system. Prosecutors are supposed to prosecute those they believe are guilty (of course that doesn't mean negligently or willfully ignoring evidence that points toward innocence). While the system is supposed to presume innocence until proven guilty, it's the job of the prosecutor to prove guilt.

authatheist• 12 years ago

Kickbacks from the prison-industrial complex, of course. They're bribed to ruin people's lives, but that's fine with the prosecutors themselves because they're sociopaths.

rayiner5• 12 years ago

NB: the author, Jed Rakoff, is a prominent federal judge in New York City.

Svip2• 12 years ago

Mandatory minimums seems rather cruel. In my country - Denmark - sentences are usually limited to 15 years (life in prison, actually means that after 16 years, your case will be reheard by the judicial system; in serious crimes, these verdicts are usually predictable (i.e. keeping the convicted in prison)).

The fact that a state can demand a mandatory minimum sentence of 15 years for selling heroin is outrageous. That's not to say, that there aren't convictions here that don't have the appearance of mandatory minimums, but not by law, merely by practice.

(Also, I find no evidence to suggest that mandatory minimums have done anything to reduce crime in the US.)

Broken_Hippo2• 12 years ago

You are correct - but the US system is different. The main goal of Denmark's prison system is likely centered around making sure people are reformed when they get out. The loss of freedom itself is the main punishment. The US system focuses much less on reforming people, but instead focuses on punishment. Loss of freedom isn't enough.

Mandatory minimums do have cruel outcomes: Usually the minimums were put in place as a political ploy (we'll make sure those bad people get put away for a long time - to keep your kids safe at night). I'm pretty sure that evidence doesnt' exist - any that does is likely against mandatory minimums.

Svip2• 12 years ago

So the only reason mandatory minimums are not unconstitutional is because of the word 'and'? I guess you can then make any cruel punishment constitutional by making it usual.

vidarh2• 12 years ago

And the US pays for it with ridiculous re-offending rates...

jotm• 12 years ago

Not only for selling of drugs - for possession. 2-8 years just for having a few grams of cocaine on you. Then there's the fines that can get you stuck in a imprisonment loop (jailed for not paying -> out of jail -> unpaid fines -> jailed for not paying -> repeat). Insane.

eloisant• 12 years ago

Not only that, but mandatory minimum is basically the legislator not trusting the judges to give the right penalty.

And they're unfair because they restrict the ability for the judge to individualize the penalty.

barking• 12 years ago

Well maybe sometimes judges shouldn't be trusted.

A judge's sentencing can vary from one day to the next and can depend on factors as trivial as how enjoyable his/her lunch was.

cauterized2• 12 years ago

Sure, and then you get judges who try to give a guy 3 months for raping a 14-year-old.

Mandatory minimums are also intended to make justice less arbitrary.

ggchappell• 12 years ago

The end was interesting. Particularly the part that begins as follows:

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process.

Worth a read.

abecedarius2• 12 years ago

History rhymes: see this article on self-incrimination under the threat of torture.

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?artic...

eru• 12 years ago

Thanks! Excellent read. Perhaps submit that paper directly to HN?

abecedarius2• 12 years ago

Feel free. :) It's probably been submitted already; I think I got it from an HN thread on Aaron Swartz.

bsder5• 12 years ago

The real problem is that we allow the prosecuting attorney to "strike" possible jurors from the juror pool.

The defense should get this advantage, but the prosecution should not. If the prosecution has to stack the jury to get a conviction, it doesn't have a proper case.

Another problem is that the prosecution is looking for easily influenced jurors rather than diligent ones.

Once had a hung jury on this where one juror was voting guilty and wouldn't budge. Our take: "Look, yes, he is guilty of possession. He had the drugs. BUT THAT'S NOT WHAT HE'S CHARGED WITH. He's charged with conspiracy and he wasn't even in the country at the time the conspiracy was supposedly discussed. The government HASN'T PROVED ITS CASE."

Nope. Guilty. Won't budge. And she was a grand juror. So much for the safety check of a grand jury. Sigh.

vvpan• 12 years ago

Well as I understand the article argues that all of this happens before the jury has any say? So you are talking of a separate problem?

jeremyjh• 12 years ago

Well anything that increases the prosecution's chances of winning a case will increase their power in plea bargaining as well.

bsder5• 12 years ago

The prosecution doesn't really fear losing a case. If the prosecution actually lost more cases that went to trial they would be far less aggressive when seeking plea bargains.

nzealand2• 12 years ago

Are you talking about state or federal?

The article is largely talking about the federal penalties for going to trial, where you have to be 80% sure you will win before it makes sense to reject a plea bargain and go to trial.

bsder5• 12 years ago

Federal. Of the people on the jury, there were only 3 that activated brain cells. The rest were like "Well, the prosecution says he's guilty and he's a bad man and hangs out with bad men, so I guess he's guilty."

Um, NO.

He may be guilty as sin, but the government has to prove it's case. If it doesn't prove the case, he walks irrespective of whether he is a bad man because sometimes he ISN'T a bad man.

bmelton2• 12 years ago

Perhaps off topic, but charges of conspiracy can be upheld where any elements of the conspiracy took place, whether or not all of the participants were in that place at the time.

If he received a phone call from a co-conspirator, he can be found guilty of conspiracy charges, whether or not he was in the country at the time the other crimes were committed.

bsder5• 12 years ago

That may be, but then the prosecution would have to provide evidence such contact. They did not.

It was very clear that someone didn't take whatever threat (aka plea bargain) the government provided, and the government wanted to make an example of him.

tzs• 12 years ago

I don't see how allowing prosecutors to strike jurors has anything at all to do with the problem. Prosecutors (and defense attorneys) only get a small number of peremptory strikes. They can strike more, but they have to give the judge an acceptable reason. A prosecutor cannot "stack the jury" via peremptory strikes.

You are essentially proposing that juries be selected by the defense. That would not result in impartial juries. It would result in juries that are prejudiced in favor of the defendant.

The real problem is mandatory minimum sentences.

bsder5• 12 years ago

It would result in juries that are prejudiced in favor of the defendant.

Um, yes, exactly. As opposed to now where the jury is prejudiced against the defense. Most jurors believe that you are guilty by virtue of being in the defendant chair; that needs some counteraction.

The government already has all the advantages--reports, police, enormous resources, and the charging authority.

Giving the defense a prejudiced jury would be a good starting point for counterbalance.

And, I don't think you would find the juries being that prejudiced at the end of the day, anyway. Most people are far too docile and believe the prosecution without any level of skepticism.

coldtea• 12 years ago

That would not result in impartial juries. It would result in juries that are prejudiced in favor of the defendant.

Yeah, and that's a good thing. The prosecution should work hard and provide facts to PROVE the defendant done the crime, not pick jurors to help them in burrying anyone they set their targets on.

nullc2• 12 years ago

Some background on the author: http://en.wikipedia.org/wiki/Jed_S._Rakoff

analog31• 12 years ago

In my view the right to a jury trial doesn't just protect the innocent, but provides the system with much needed oversight. In a trial, the prosecution has to make its case, not just before the judge and jury, but in principle, before the entire public. And the public gets to see the quality of the evidence being presented.

Bypassing the trial lets the prosecution work in darkness, and darkness invites corruption or incompetency, even if only in the name of getting the job done more efficiently.

I'm thinking out loud here, but maybe the problem isn't the plea bargain, but the pleading process itself. It might be less subject to abuse if the prosecution had to present its evidence before the court and in public, and if the judge could reject the plea and compel a trial.

nzealand2• 12 years ago

Motions can be passed prior to trial to question the validity of certain charges.

The problem is there are a lot of federal judges who let prosecutors continually change the charges, change the rational for the charges, add on whole new charges in an attempt to force a plea bargin etc...

downandout• 12 years ago

This article is pretty much dead-on. Our laws have become more broad with absurdly high maximum penalties, and this extorts guilty pleas. For example, an internet merchant accused of failing to deliver 10 $200 orders could be charged with 10 counts of Wire Fraud and face a potential sentence of 300 years in prison (up to 30 years per count). Thus, when this hypothetical web merchant is offered a deal for 6 months, he will take it, regardless of whether he may have won at trial or not.

The system is designed to extort guilty pleas. The statistics are pretty straightforward: if you are standing in court facing charges, you've already lost. You just may not know it yet.

Rapzid• 12 years ago

In a way this seems like just another example corporate culture seep into our government. The prosecutors are gaming the system HARD and completely against the spirit of the system, but it's legal so it's OKAY. Meta justice.

I know somebody who had some charges brought against them about 10 years ago. It was a he-said/she-said and the state had no real evidence. From the get go they were trying to get a plea bargain. The accuser even recanted, signing a witnessed statement to the effect that they lied about the whole thing. Still, they pressed forward. Delaying meetings, pushing out dates, and generally drawing the whole thing out. They waited until the very day the statute of limitation ran out to close the case. I've seen first hand how much leverage they have over people. These types of charges, even pending, can completely wreck your life. And the stress. I remember everyone saying he should take the plea bargain, but I agreed that if he was innocent he had a duty to tell them to stuff it and hold out. Justice, pride; I GOT it. We were young. Now though, at 30.. If I were in a similar situation I'm just not sure what I would do.

csense• 12 years ago

We should make the maximum sentence that can be sought at trial a small multiple of the minimum sentence. So the defendant is looking at a tradeoff of at most a year in jail vs. three years in jail.

Giving defendants a choice between a certain year in jail if they plead guilty or 15 years in jail if they're convicted, it becomes basically right for them to accept the former just from a risk management perspective.

Playing a game of high-stakes poker with your freedom on the line makes a mockery of the very concept of justice.

vskr• 12 years ago

Will making prosecutors accountable for wrongful conviction keep them in check?

pessimizer2• 12 years ago

I did because I was offered a plea for no time (other than the night I had already spent in jail), no fine, and it would be expunged from my record in two years. At least, that's what the public defender told me during the single minute I spoke to him while walking down the hallway to court.

It didn't matter any more that I hadn't done anything (not just anything wrong, but anything - I had been arrested while sitting on the sidewalk talking to friends) the important thing was being free from a potential three year sentence for 'criminal trespassing' at 18.

Why Innocent People Plead Guilty

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