In several important ways, the plea bargain system in American courts perverts justice: encouraging prosecutors to pile on charges in hopes of frightening defendants into bargaining, and forcing those being charged to consider falsely pleading guilty because the punishment that would arise from going to trial and losing would be massive.
Nonetheless, The Economist reports that plea bargaining is spreading, from 19 countries in 1990 to 66 now. In federal courts in the United States, “close to 100%” of convictions arise from plea bargains. Less than 3% of federal court defendants go to trial.
The flaws with plea bargaining dovetail with other injustices, from the insufficient provision of public defence lawyers to the structural discrimination embedded in discretionary prosecution and exploitation of civil forfeiture.
“Often, plea bargains are conditional on giving up the right to challenge a conviction later. And exoneration efforts focus on serious crimes, where sentences are long and there is more likely to be forensic evidence.
Researchers are starting to demonstrate how common false confessions are likely to be. In a study in 2013 by Lucian Dervan of the Belmont University College of Law, together with Vanessa Edkins, a psychologist at the Florida Institute of Technology, students were asked to solve logic problems, first in a team and then alone. An accomplice of the researchers asked half the participants for help on the second set. All were then accused of cheating and offered a “plea bargain” to avoid penalties that could include losing the payment for participation and having their supervisors notified. Nearly 90% of those who had aided the accomplice confessed. But so did a majority of those who were innocent.
Mr Dervan is now running studies in Japan, which is introducing plea-bargaining, and South Korea, which may do so. Japan, where criminal suspects may be held for 23 days without charge, often with only minimal contact with a lawyer, perhaps deprived of sleep, is already worryingly good at extracting confessions. Plea bargains are being brought in as part of the horse-trading over a larger criminal-justice reform, in which prosecutors opposed to routine recording of interrogations have managed to limit it, in exchange for formal recognition of plea-bargaining and other aids to investigating complex crimes.
Early results suggest that the “innocence issue” is universal, says Mr Dervan. Differences in legal systems do not change the rate of false confessions much. Another study he is conducting suggests that guilty participants are no more likely to plead guilty if offered a big incentive rather than a small one. Innocent ones, however, become more likely to make false confessions as the incentive—in other words the penalty for rejecting the deal—rises.
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In many American states the consequences are more severe and long-lasting. Criminal records may never be expunged and may mean being barred from voting, evicted from public housing, denied welfare or turned away when applying for a job.”
A bid by Colorado to legalise marijuana banking is bogged down in court. Moreover, police have an incentive to keep pot money unbankable. Remarkably, forfeiture laws let police departments seize cash and pocket much of it if they suspect it includes proceeds from crime. No crime need even be charged.