On “Coercive” Plea Bargaining

In his response to Barry Latzer’s An Incarceration Nation?, the Cato Institute’s Clark Neily argues that a significant contributor to over-incarceration is the number of improperly convicted individuals who were coerced into plea bargains. This argument, which Mr. Neily made with great rhetorical force, is one his writings have prompted me to explore. The issues he raises are important and worth engaging when writing and thinking about criminal justice policy. It is in that spirit which I, as the one respondent in agreement with Mr. Latzer, offer for consideration the following thoughts not raised in Latzer’s reply.

In making his argument, Neily points to the existence of a “trial penalty,” which he defines as “the differential between the time a defendant will serve if he agrees to plead guilty and the time he will serve if he exercises his right to trial and loses.” But such a differential doesn’t necessarily connote a “penalty” (as opposed to, say, a “discount”). The phrase “trial penalty” is a loaded one, which argues something specific: that the sentencing differential between what’s handed down after a plea bargain and what’s handed down after a guilty verdict at trial is vast enough to regularly coerce criminal defendants—even factually innocent ones—to plead guilty.

In making his argument, he points to a report published by the National Association of Criminal Defense Lawyers (NACDL) purporting to show that “those differentials can be staggering, with those convicted after a trial serving sentences two to three times longer than those who pleaded guilty.” But, the analytical value of the NACDL report is severely limited by its exclusive focus on federal data, as well as its lack of any meaningful controls to isolate the role that factors like criminal history play in explaining the sentence disparities its authors decry. Indeed, the report’s authors acknowledge that their analysis “does not take into account every factor in each individual case that may have led to a higher sentence.”

More precise analyses of this issue indicate—at the very least—that the empirical evidence regarding whether the data Neily presents reflects a “trial penalty” rather than a “sentence discount” is more mixed than one might guess after reading his essay. This is the first of three critiques I’ll make below. The second is that Neily’s argument doesn’t seem to leave room for other compelling-yet-benign explanations for the ubiquity of guilty pleas in modern American criminal prosecutions; and the third is that it’s far from clear that a reduction in plea bargaining wouldn’t be offset by the impact of longer sentences on incarceration rates.

In assessing whether and to what extent plea bargaining in the United States is by and large a coercive process, it might be instructive to look to some of the work done by David S. Abrams, whose empirical analyses of plea bargaining have found, for example, that the dominant “view of the trial penalty… is completely at odds with economic prediction.” In a 2011 study of plea bargaining in Cook County, Illinois, Abrams found that “a risk‐neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain.” For those inclined to simply dismiss Abrams as a scholar whose studies are geared toward a predetermined result, I would note that in one assessment of plea bargaining in North Carolina, Abrams did find a trial penalty of about six months—though that finding was complicated by the state’s structured sentencing regime.

Abrams—whose work is not without its detractors—isn’t the only scholar whose findings run counter to the standard story regarding plea bargaining in the United States. A study published in Crime & Delinquency in 2018 found that “Defendants [in NYC] charged with more serious crimes, persons crimes, crimes with victims, and represented by private attorneys were more likely to go to trial than to be pleaded out.” That finding squares with a 2019 study, published in Legal and Criminological Psychology, which “suggest[s] that, given similar discounts, the likelihood for pleading guilty may be higher for defendants facing less serious charges that carry less severe sentences.” In other words, the prospect of a long prison sentence may not weigh on defendants as heavily as one might assume at the bargaining stage, leading many individuals facing long sentences to take their chances in court.

To be sure, whether modern plea bargaining has reached a point at which factually innocent defendants are regularly induced to plead guilty to crimes they didn’t commit is a serious question—one with which policy analysts ought to be genuinely concerned. But a recent study published by the University of Utah’s Paul Cassell provides reason to believe that wrongful convictions are extremely rare. Rarer still, per Cassell’s study, are wrongful convictions resulting from guilty pleas as opposed to trials. Yet there’s no getting around the fact that plea bargaining has become the overwhelmingly dominant resolution mechanism of criminal cases.

This takes me to the basis for my second critique, which is that the increased rate of plea bargaining in the United States might also reflect the impact of technological advancements on the likelihood of a guilty verdict. For example, it is now estimated that 80 percent of crimes involve video evidence, which is largely a function of the increase in the number of both public and private security cameras in use, as well as the increase in the use of body-worn cameras (BWCs) (which, by 2016, were used by nearly half of all law enforcement agencies in the U.S.). Interestingly, a meta-analysis of the literature on BWCs noted a study finding that 93% of prosecutors reported using BWC footage “primarily to prosecute citizens.” That meta-analysis also noted empirical support for the proposition that the presence of BWC footage increases the chances of guilty pleas (in addition to guilty verdicts, and the filing of criminal charges).

Beyond cameras, a wide range of evidence attributable to technological advances—think DNA analysis, facial recognition, cell site location data, computer databases, and wire taps—is now available to prosecutors. That sort of evidence strengthens cases in ways that would not have been possible back when trials were more common. The presence of such evidence makes prosecutors more likely to bring charges and make more punitive charge offers at the bargaining stage.

Finally, whether a substantial reduction in plea bargains would actually translate to a substantial reduction in America’s incarceration rate is also unclear. A 2017 paper found that though “more than 20 percent of defendants who currently receive prison sentences would be acquitted” if plea bargaining were banned, “the aggregate time convicts would spend behind bars would increase substantially.” The author of that paper concluded that “without the opportunity to bargain for a plea deal, defendants would face the prospect of much longer sentences,” such that “the increase on the assigned sentences would more than offset the lower probability of a conviction.”

To be sure, none of this is to say that there isn’t some subset of America’s prison population whose incarcerations were the products of coercive plea bargains. Surely, there is. But, it’s far from clear that such outcomes represent the center of the distribution of criminal cases prosecuted in the United States, let alone that they drive the U.S. incarceration rate. Whether the U.S. locks up too many people may be a complicated question; but whether America’s incarceration rate is driven by coercive plea bargaining is one I think we’re much farther from being able to answer. 

Reader Discussion

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on April 03, 2020 at 07:48:05 am

Very important issue. There are hell of complications here. Just worth to note:

The post, ignores, the issue of lawyers and their role in such cases. The defendant is helpless too many times. He must listen to his lawyer. The lawyer has the tools to asses, what are the chances ahead. How much shall it cost ( to engage and not to give up, and go to trial instead of plea bargain). So, one should understand well the dynamic and rhetoric between them both.

Also, technology and criminal proceedings, are not such a simply issue. One may think indeed, that evidence of such, recording in real time the event, or DNA etc... are prevailing decisively. It is not always so. Many times, the contrary. Judges are well aware to the overwhelming technological tools. It does create not once, problem of admissibility. That is to say, that even if the evidence is correct, authentic, reflecting the truth, that is not always the end of the story, but, many times, no case at all, since, it would be suppressed and wouldn't become admissible at all. Sometimes, even if admissible, that is not at all sufficient. For, other reasons would necessitate the suppression or exclusion of such evidences.


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El roam
on April 03, 2020 at 10:16:06 am

Just negligible illustration, to my comment, and, that issue, of advanced technology v. Fourth amendment:

Here I quote from :

Michael A. Cunningham V. New York state department of Labor, a case concerning surveillance, by putting tracker device ( GPS) on a car:

" In Weaver, we explained that GPS tracking is more intrusive than simply following a car, and that GPS surveillance is not analogous to visual surveillance for the purposes of constitutional analysis (see Weaver, 12 NY3d at 441).GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.The potential for a similar capture of information or ’seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp” (id. at 441). It took ”little imagination” for us to conjure the types of indisputably private” information that would be ”disclosed in the data” from a GPS device planted on a person’s vehicle:T]rips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits” (id. at 441-442; see Jones, 132 S Ct at 955 [citing Weaver for the proposition that ”GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about [his or] her familial, political, professional, religious, and sexual associations”]).Recognizing that, "[w]ithout judicial oversight, the use of [GPS] devices presents a significant and, to our minds, unacceptable risk of abuse” (Weaver, 12 NY3d at 447), we held that ”[u]nder our State Constitution . . . the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause” (id.). "

One can reach the case cited, in the supreme court of New York ( appellate division,but, not from there cited above):



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El roam
on April 03, 2020 at 13:33:17 pm

Either innocent people are induced to plead guilty or guilty people are given a "discount" because prosecutors aren't willing to take the trouble to go to trial. The latter puts the prosecutor in the position of sentence determination, which should be the prerogative of the judge and jury. The former is an unspeakable injustice. A driving force in the use of plea bargaining is the drawn out and complex nature of trials. Ironically in the attempt to protect the innocent defendant, criminal procedures may achieve just the opposite of their intended effect.Richard Wallace

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Richard Wallace
on April 03, 2020 at 18:48:54 pm

I will bet the author has never been a Defense Counsel for an actually innocent client who "looks" guilty (usually because the police stopped looking for the perp once had a patsy). I have been. There is nothing the innocent client cal tell you about the crime and little you can do but FORCE the prosecutor to carry his burden of proof AT TRIAL. To deny that trial is to deny justice. Juries do not start with guilt presumed. Prosecutors DO. Trying to talk an convinced man, already committed to the guilt position by filing charges, that HE is wrong is a undertaking the might leave even Jesus Christ unable to being Justice into this case. Add to that the fact that trial Judges (about half of whom are former prosecutors) DO IMPOSE a "trial penalty" and a significant one, and Justice fades out of the question.

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Joseph Olson
on April 03, 2020 at 14:30:39 pm

I am not a criminal lawyer, but my sense is that we have now such a proliferation of "laws" that a single action can be alleged to be a violation of several different laws, each with its own evidentiary requirements and assigned or allowed penalties. A guy on a street corner alleged to possess a gun and alleged to be dealing drugs allegedly within X yards of a school or playground--it would be very interesting to know what the average number of separate counts is in the indictment for such an act. Does the grand jury have to indict on each separate count? I assume, perhaps naively, that the longer the list of counts, the higher the probability that if he goes to trial he will be found guilty of at least one of them, and from what I have seen all of them carry long maximum prison terms if not statutorily mandated prison terms. The coercion may not be a function of the prosecutor's aggressiveness so much as it is of the proliferation of laws.

As for the 2017 paper cited, I question the value of inferences that can be drawn from it. It seems to amount to saying that "real" criminals---those convicted by an impartial jury in a fair trial--will serve more time while non-criminals will go free. Kinda the point, no? And I don't understand how fewer persons serving longer sentences can increase the incarceration "rate."

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on April 28, 2020 at 21:26:41 pm

Regarding coerced plea bargains, one does not look beyond that General Flynn, who is trying to withdraw his guilty plea. Also, in my previous job I must have easily interviewed over 1000 inmates. Those facing misdemeanor charges often pleaded guilty because it meant getting out of jail sooner with a sentence that often made them almost immediately eligible for parole rather than going to trial and being held pre-trial for up to a year. It was also common for inmates to tell me that their public defenders preferred plea bargaining either due to their lack of experience or over abundance of clients.

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Andrew Kohlhofer
on April 08, 2020 at 09:11:13 am

[…] [Note: askblog had an existence prior to the virus crisis. I still schedule occasional posts like this one.] Rafael A. Mangual writes, […]

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