A Nearly Perfect System for Convicting the Innocent

Author: 
Albert Alschuler

The statements of lawyers engaged in plea bargaining, empirical scholarship, and economic theory all support the same conclusion: Our system of criminal justice makes it advantageous for almost every innocent defendant to plead guilty. Although a system in which a prosecutor could convict whomever he liked just by pointing might be even more effective than ours in convicting the innocent, ours is nearly perfect. This Article considers the “libertarian” or “freedom of contract” defense of this system — that it is appropriate to convict the innocent when the innocent themselves find it advantageous to enter bargained pleas. It also considers the devices that sometimes are thought to keep bargaining from having the effect it seems designed to produce. These devices include the reluctance of wrongly accused defendants to plead guilty, court rules requiring judges to find a factual basis for a guilty plea, the ethics of prosecutors who say they do not prosecute unless they are personally convinced of the defendant’s guilt, and the ethics of defense attorneys who say they do not permit guilty pleas when their clients maintain their innocence. In practice, defendants often may plead guilty when the offers they receive do not overbalance their chances of acquittal. Defense lawyers have strong personal interests in persuading them to do so, and the greatest pressures to plead guilty may come from these lawyers rather than from prosecutors or judges. The interests of criminal justice officials and practitioners, however, are aligned. In all probability, plea bargaining greatly multiplies the number of wrongful convictions.