How to Reduce the ‘Safety Hazards’ of Plea Bargaining

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, Israeli law professor Boaz Sangero writes in a paper for the Pace Law Review.

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, according to Israeli law professor Boaz Sangero.

In a paper entitled “Safety from Plea Bargains’ Hazards,” Sangero, who heads the Criminal Law and Criminology Department at the Academic Center of Law and Business in Israel, claims plea bargains pose a safety hazard because of the way they incentivize defendants to plead guilty regardless of their actual innocence or guilt, resulting in false convictions.

Sangero’s article, published this summer in the Pace Law Review, argues that this risk can be mitigated through the adoption of an engineering safety model called the “System-Theoretic Accident Model and Processes” (STAMP).

STAMP seeks to identify potential safety hazards and put “constraints” in place to prevent them before they occur.

The vast majority of cases in the American criminal justice system are settled through plea deals—97 percent of all federal cases and 94 percent of state ones. In a plea-bargain arrangement, the defendant admits to an offense in exchange for a lighter sentence from the prosecutor than could be expected following a conviction at trial.

Advocates of plea bargaining emphasize their supposed benefits for the state and the defendant. The former saves the resources it would otherwise spend on conducting a full trial; the latter receives more lenient sentencing.

But for precisely these reasons, the plea-bargain system runs the risk of locking up the innocent.

Plea bargains make sentencing significantly more efficient for prosecutors, allowing them to file many more indictments than they realistically could try.

This spares prosecutors from needing to screen cases before indicting. While they might otherwise be forced to weed out those cases where the charge is minor and the evidence weak, plea bargains enable them to overcharge, knowing that most cases will be resolved quickly and without going to trial.

Meanwhile, the threat of heavy “trial penalties”—more severe punishments should defendants go to trial and lose—incentivize defendants to plead guilty regardless of their actual innocence or the strength of the case against them.

Sangero cites the 1999 Tulia scandal, in which the testimony of one undercover cop in Tulia, Tx., later shown to be an unreliable witness, resulted in the conviction of 38 people on drug charges, as one example of a case where many innocent defendants were charged, and a majority of them pled guilty.

A judge later overturned all 38 convictions, begging the question why so many innocent people pled guilty in the first place.

The likely answer lies in the disparities in sentencing. A Tulia defendant who accepted a plea bargain received an average of four years in prison, compared to the 51 years received by a defendant who plead innocent and was convicted at trial.

Citing data from the Innocence Project, Sangero estimates that the false conviction rate is at least five percent for the most serious crimes, and potentially higher for more minor infractions.

To put that number in context: in 2006 (more recent aggregate data is difficult to come by), state courts sentenced an estimated 1,132,290 persons for a felony conviction. Using the Innocence Project estimates, that translates to over 55,000 false felony convictions at the state level alone.

But while false convictions are not uncommon, they often go undetected. Exonerations are exceedingly rare, leading policymakers and the public to believe that the justice system is functioning well when in fact large numbers of innocent people are behind bars.

“The plea-bargain system in its entirety is truly a disaster, particularly from the perspective of the need for safety from false convictions,” Sangero writes.

“Indeed, it is an anti-safety system.”

Though Sangero himself is a proponent of abolishing plea bargains entirely, he concedes this is unlikely to happen any time soon. So to mitigate the harm he says is caused by the process, he proposes applying STAMP to the criminal justice system to reduce the number of innocent defendants who are incarcerated on plea deals.

STAMP involves determining what “constraints” are necessary to make the system function without mishap and creating a structure that will enforce those constraints.

In the case of the plea-bargaining system, this means strengthening the pre-screening procedures for indictments. Courts, Sangero says, should review whether the evidence of the defendant’s guilt merits his or her indictment in the first place.

He also calls for recognizing defendants’ right to a fair plea-bargain offer so that the offer a defendant receives is not dependent on the goodwill of a particular prosecutor.

The court should supervise the prosecution’s policy for determining the divergence between the punishment offered in a plea deal and that expected if convicted at trial, Sangero writes, so as to remove any enticement to confess for the innocent. This it a normal practice in the German legal system, he points out.

In the event that a guilty plea is entered, the court must ensure that the defendant’s confession of guilt was made with adequate legal representation and not under duress from the prosecution.

“There have always been, and always will be, accidents. In some aspects of our life, this appears to be an inevitable reality,” Sangero writes.

“However, a high rate of accidents is not an unavoidable fact of life, but rather the product of human negligence; or even indifference—when we are aware of the danger but do not act purposefully to reduce it.”

Sangero argues that adopting STAMP will “significantly reduce the terrible phenomenon of false convictions based on plea bargains.”

Elena Schwartz is a TCR news intern. Readers’ comments are welcome.