
Why Innocent People Plead Guilty - colmvp
http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/
======
japhyr
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/](http://www.healthiersf.org/RestorativePractices/)

And a more general perspective:
[http://www.restorativejustice.org/](http://www.restorativejustice.org/)

~~~
kashkhan
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...](http://www.sethgodin.com/sg/docs/stopstealingdreamsscreen.pdf)

> 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
>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

~~~
logicchains
At least there's one good thing about it: it's a great motivator to work hard
and get rich if one is planning on having kids, in order to avoid sending them
to public school.

~~~
logicchains
N.b. to downvoters: The parent comment was a possibly poor attempt at irony. I
don't actually think there's anything good about US public schools.

~~~
mhurron
> I don't actually think there's anything good about US public schools.

It's a good thing no one here actually went to one isn't it.

------
bsder
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.

~~~
tzs
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.

~~~
bsder
> 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.

~~~
pdabbadabba
I see what you're saying, but I think it lacks perspective. Yes. the
government has a lot of advantages, such as the ones you list. But remember
that

a) A criminal jury verdict has to be unanimous. So the "defense's" jurors have
to vote to convict along with the "government's." This is clearly designed to
benefit the defense.to

b) The "beyond a reasonable doubt" standard of proof. Defendant friendly, to
say the least.

c) Jurors are notoriously unpredictable. I don't know of any lawyer (and I
know a _lot_ of lawyers), whether a defense attorney or prosecutor, who would
tell you that they can reliably predict what any given juror will do. The best
you can do is ask questions like "do you think that anyone convicted of a
crime is probably guilty" or "would you feel comfortable sending someone to
jail" and remove the jurors who give the "wrong" answers to those questions.
And note that these would typically be "strikes for cause," and therefore
don't count against either side's total number of peremptory strikes.

~~~
mapt
Item A is not precisely accurate communication, because it is _not_ voting in
the sense of other voting. A criminal jury verdict has to be unanimous, but we
send them to a sealed room and tell them 'Come back when you have a unanimous
verdict.', rather than "Oh, you voted and disagreed? Well, Not Guilty then."

There is a strong understanding among the populace that a jury is a
majoritarian body, that unanimity is a legal fiction, and that juries which
can't effectively suppress dissenting opinions are _failures_ in their social
function, and we demand both extended "deliberation", and a _completely new
trial_ to correct their issue.

We even reinforce this understanding in caselaw; A last-ditch effort to
un-"hang" a jury is termed an Allen Charge, which is apparently when the judge
instructs the jury's minority vote that their position isn't reasonable while
glaring at them menacingly.

------
Svip
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_Hippo
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.

~~~
Svip
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.

~~~
Broken_Hippo
Heh. Unfortunately it is more complicated than that. I think the line includes
cruelty along with the 'and' to attempt to put some sort of limits on
punishment and to make sure the punishments matches what society knows as
'uncruel', though in practice it doesn't work out as well as imagined.

I'm not sure if anyone has appealed mandatory minimums on the basis that they
are cruel and unusual punishment: They probably have research to back up their
claim. This is probably the true reason they aren't unconstitutional - because
you have to appeal and sue (sometimes pretty far) to try to get those turned
over. The other option is for the public to pressure legislature into changing
the laws, and considering the current climate in Washington, I doubt that is
going to happen soon enough.

------
analog31
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.

~~~
nzealand
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...

------
jMyles
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?

~~~
OffshoreGuy87
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.

~~~
ricree
>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.

~~~
thaumasiotes
> 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.

There are a couple of problems with this:

1\. When everyone is guilty of something, prosecutorial discretion is a
disaster, not a desirable feature of the system. It's nothing other than the
power to bankrupt and/or imprison whoever you don't like.

2\. They don't do things by assessing truth and innocence. When my great-
grandfather's mind went, some member of another branch of the family got
appointed conservator of his estate, and proceeded to embezzle over $600K in
"gifts" to herself and her family. My mother discovered this by coincidence,
assembled a huge pile of damning evidence, and went to a prosecutor, who said
he wouldn't bother charging her because she was a middle-aged woman and
getting a conviction would be almost impossible.

My mother ended up suing, and on advice of counsel settled for the documented
value stolen, rather than the full legal liability (which is a multiple of the
losses). The theory there, as I recall, was "judges hate it when you go to
trial even after being offered a settlement, so you should take the
settlement".

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

------
csense
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.

------
downandout
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
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.

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

[http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?artic...](http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1005&context=crosskey_lectures)

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

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

------
ggchappell
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.

------
pessimizer
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.

------
nullc
Some background on the author:
[http://en.wikipedia.org/wiki/Jed_S._Rakoff](http://en.wikipedia.org/wiki/Jed_S._Rakoff)

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

