Study Shows That Most Innocent Defendants Plead Guilty

Readers of this blog know that I hate the American plea bargaining system — for example, check out my earlier blog on the topic, “The Death of Trial By Jury“. So many of the ills of the criminal justice system are exacerbated by the fact that the plea bargaining system, in which prosecutors hold inordinate and extra-legal power, now dominates. The fact that 97% of all federal cases pursued by the Department of Justice last year were resolved by guilty pleas is a disgrace … and it should frighten all Americans interested in justice.

We know that innocent people routinely plead guilty — indeed, in the current American justice system, pleading guilty is usually the most rational action an innocent person can take. The expense, the stress, and the lost time incurred by a person who actually wants to exercise his Constitutional right to defend himself, plus the draconian sentencing penalty applied to any person who goes to trial and loses, is overwhelming. The Enron cases are replete with examples of innocent people pleading guilty.

The Wall Street Journal published an excellent article a few months ago titled, “Academic Study Shows Innocent Plead Guilty at High Rate” which helps to show the seriousness of the problem. In the study highlighted in that article, 55% of the innocent people plead guilty when faced with situations designed to replicate those faced by criminal defendants. I suspect that this number is actually low because the stress of people actually facing a real criminal indictment is much more intense than anything that can be replicated in a study. But even if the rate is “only” 55%, it means that most innocent people plead guilty. Think about that — most innocent criminal defendants in the USA falsely plead guilty!

This basically means that plea deals are worthless as an indicator of guilt or innocence. They tell us nothing except that the prosecutors have coerced another plea deal. There are dozens of problems with the American criminal justice system — however, if you have the energy to support just one reform, I recommend you spend it on the elimination of plea bargaining!

Cara Ellison


  1. Credit Rudy Giuliani in the Michael Milken era for giving us `Innocent until perp walked’ and the tactics of piling up indictments on ancillary actions as you mentioned before, sealed indictments on potential defense witnesses or family members.

  2. Hi Stephen. Thank you for asking one of my favorite questions! I will provide more information in a future blog post, but here is a short answer.

    Right now, there is not a unified high-profile legislative reform program focused exclusively on plea bargaining reform. There are, however, a number of groups interested in reforms that are strongly tied to the plea bargaining system. You can contact any of these groups to express your concern over plea bargaining, to request information about what the groups are doing about it, and to ask how you can get involved.

    Three groups you can contact are the Senate Committee on the Judiciary, the House Committee on the Judiciary, and the National Association of Criminal Defense Lawyers (NACDL). Each of these groups have committees or sub-committees that focus on various issues. You can find names and contact information on the Web for these groups and others. It is important to know that plea bargaining is often subsumed within topic areas such as over-criminalization, prosecutorial misconduct, judicial process, etc., so you might not find a handy “plea bargaining” committee — just contact whatever seems closest to the topic to get more information.

    Also, if you web search for something like “reforming plea bargaining” you can find other information, including useful reading. By the way, one paper I like (it is available on the NACDL website) is:

    Lucian E. Dervan, Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization, 7 J.L. Econ. Pol’y 645 (2011)

    I will write a post on this in the future with more information about how to support reform. Thank you for asking, and I hope you will stay interested in legal reform!

  3. I’m glad I found this blog. I just plead guilty to wire fraud even though I am not guilty. I am crushingly depressed about it. I’m 44, I always believed in our justice system until this happened to me. If you are innocent, just go to trial and the truth will come out. That’s what I thought. I had also thought that prosecutors were the “good guys.”

    After saying they were going to indict, the prosecution offered a plea deal. When I rejected it and told them I was innocent, they said they would go after my wife if I did not accept the deal. (My wife had nothing to do with the company I ran – and they knew that.) In addition, I had told them that – if charges are inevitable – please let me know the time so I can self-surrender. Rather, they filed a secret indictment and then arrested me at the airport (coming home, by the way, not leaving) and then kept me in prison for a month by alleging I was a flight risk. There is much more detail, but I won’t go into it.

    In trying to pressure me to take the plea, I was told that if I didn’t take it, they would charge me with dozens of counts and also money laundering, the end result being a guideline sentence range of 30 years to life. I was told “money laundering isn’t what you think it is and if you get convicted of even a single count, the money laundering conviction is pretty much automatic.” Further, I was told if I decided to persist in my innocence and go to trial, if I lost I would have added “obstruction of justice.” For exercising my right to go to trial, I would be convicted of obstruction of justice. Add more points to the potential sentence.

    Consider this – 30 years to life is probably much more than violent rapists, pedophiles, and possibly even murderers get. I must have done something truly horrible, right? I will let you come to your own conclusion…

    I found out that an employee was under-reporting potential company liabilities and the company was potentially under-capitalized as a result. Rather than just fold the company and leave every creditor holding the bag, I mortgaged every asset I had and contributed $3.5 million to the company as a loan. I then re-negotiated payment terms as contracts came due to keep the company liquid. I informed our marketing agents of our financial situation and of our plan to meet obligations. The plan provided for all obligations to be fully met over a 5-7 year time horizon and the company would be fully and adequately capitalized. It also called for me taking virtually no compensation other than what was needed to pay the debt service for the $3.5 million, but I was ok with that. 2008 and 2009 were incredibly difficult years and did not meet the plan schedule, however the plan was still viable (assuming the world did not fall off a cliff, which at the time, seemed like a possibility) – just behind schedule.

    In the course of negotiating repayment agreements, a client sent in funds at a time when I was planning to send out partial-payments to other clients. I did not realize this and when I checked the company account, I thought all the funds were free-and-clear – those funds were sent out to pay other obligations. The prosecution alleges that this was done intentionally to defraud that client at the expense of other clients. It is not even a little true. Why would I go through such incredible pains and efforts to meet the companies obligations to others, but then completely and purposely disregard and harm another client? It doesn’t make sense. It makes even less sense when you consider that the payments that were sent out were small partial payments to each client – representing less than 5% of the amounts owed. So it is not like I was clearing out other obligations by using those funds – all of the obligations were still in place and would be for years.

    Let me say here that while I didn’t do anything criminal, I felt crushed when I found out that this particular event had occurred – that this client lost MORE than they should have due to my mistake. And I still feel bad every time I think about it.

    There were additional allegations:
    1. That I didn’t inform new clients of the companies financial condition (we never ever disclosed our financial position, whether it was good information or bad information. We were almost never asked about our financial position. On the rare occasion when I was asked, I refused to supply it on the grounds that it was a private company and would be tantamount to giving them my personal financial information. I further explained that they would have to decide for themselves if the lack of information provided is reason not to engage in the transaction. As far as I can recall, no one ever asked for financial information after the company began having difficulties. I did disclose financial condition to the companies marketing partners. Regardless, I did not withhold the companies financial condition in order to steal property from anyone. )
    2. That representations in the original contracts were not clear to clients. (I can’t read another persons mind. The contracts were clear to me. The clients were represented by legal, tax, and investment counsel in almost all cases – they had every opportunity to ask questions or request changes if they were unclear or unhappy with contract terms. If they don’t tell me that they don’t understand, how am I supposed to know?)

    There is more I can say, a lot more, but I don’t have time. I may just be rambling at this point anyway. The bottom line is I am not guilty of any crime but was forced and coerced into taking a guilty plea.

  4. Zena, thank you for that link. I agree with Cara that plea bargaining is killing the American legal process. I will pass your link along to others!

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