As a prosecutorial tool, the plea bargain exists in uncomfortable space. Any discomfort aside, however, the criminal justice system, as currently constituted, necessarily relies on it. As research on how prosecutors exercise their discretion--including how they deploy plea bargains--continues to develop, greater empirical clarity surrounding plea bargains will hopefully emerge.
While virtually all (of the small number of) plea bargaining studies typically focus on how prosecutors wield plea bargains after a defendants has been charged and prior to the defendant entering a formal plea, a recent paper explores plea bargaining at an entirely different moment in time. Specifically, in Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence, Keith Findley (Wisc.) et al. set out to re-focus plea bargaining research by exploring what it looks like in the post-conviction appeals stage. And by exploiting only those post-conviction appeals brought by U.S.-based innocence organizations from 2010 through 2020, the authors try to focus on plea bargains for those defendants who have not-implausible claims of actual innocence.
To be sure, a dataset filtered by innocence organizations' case selections does not by any means insure that all of the (convicted) defendants are actually (or legally) innocent. Indeed, the authors admit as much when they note that "it is a virtual certainty that not all of the defendants in these cases are actually innocent." Over-inclusiveness aside, the authors feel that their dataset is "about as good as one can get for studying plea bargaining with innocent defendants."
Even after adjusting for an imprecise dataset, what the authors find intrigues. "In post-conviction litigation involving defendants with a high likelihood of being actually innocent and wrongly convicted, prosecutors offered plea bargains in 23 percent of the cases. Moreover, when prosecutors made plea offers, the plea concessions they offered were uniformly steep." If nothing else, this paper helps point the way for future research. An excerpted abstract follows.
"Critics of plea bargaining have long contended that it has an innocence problem—that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining’s innocence problem.
Utilizing original empirical data, this article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals. To address these questions, we collected a wide-range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010-2020."
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