Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge

The vast majority of criminal cases are resolved by guilty pleas. While practitioners commonly perceive plea bargaining as effectuating justice, numerous commentators have called this proposition into question. This article examines what some commentators have referred to as the 'innocence problem' in plea bargaining - the question of whether and why innocent defendants might plead guilty - by scrutinizing the roles of prosecutors, defense attorneys, and judges and discussing the ways in which each might contribute to the problem rather than alleviate it. This article argues that the incentives to a plea bargain are powerful enough to blind the prosecutor to the defendant's actual culpability. In addition, various pressures lead defense attorneys to plea bargain most cases. Even innocent defendants may plead guilty; such inclination to plead guilty derives from a combination of factors including their attorney's aversion to trial and the attractiveness of the prosecution's inducements. Structural incentives encourage judges to allow plea bargaining. These incentives also increase the possibility that the innocent defendant will be incarcerated. This article offers several suggestions for reforming the plea bargain system, addressing particular problems discussed in the article.