How many innocent defendants plead guilty? Is it common, or is it just an occasional, unfortunate, aberration? Those questions are often posed during discussions of plea bargaining. This is due, in large part, to the fact that it is now well understood that innocent defendants do plead guilty. For example, The Innocence Project at Cardozo School of Law tells the story of twenty-eight such defendants on their website.

But, how frequently do innocent defendants plead out? Is it true that the innocent are more risk averse (as some have suggested) and therefore would be more likely to plead guilty? In an era with increased criminalization at every level of our society, and when the United States continues to incarcerate more people than any other nation on earth, this is a question that anyone concerned about how the U.S. criminal justice system operates should ask. And, more importantly, answering that question may help to point to clear reforms in plea bargaining that could help to reduce the likelihood that an innocent person will plead guilty to a crime they didn’t commit.

A study was recently published on SSRN which gives an interesting perspective on how frequently the innocent plead guilty. Unlike other experiments in laboratory settings, the subjects of this study were not answering hypothetical questions, but felt that they were actually accused and would suffer actual consequences. The article is: The Innocent Defendant’s Dilemma:  An Innovative Empirical Study of Plea Bargaining’s Innocence Problem by Lucian E. Dervan and Vanessa A. Edkins, available at: link.  The abstract is:

“In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty.

That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.

Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.”