“[H]orse trading determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
Plea bargains are the backbone of the criminal justice system today, but they can make it easier for innocent people to plead guilty rather than fight the charge. When bail can be too expensive and awaiting trial can make it impossible to manage child care and keep a job, pleading guilty can be the best option. When an innocent person is charged with misdemeanor crimes, such as filing a false report, misdemeanor assault or possessing a small amount of illegal drugs, it can be nearly impossible to prove that person’s innocence. Due to the difference in status between a misdemeanor (typically, a crime punishable by not more than one year in prison) and a felony (a crime punishable by more than a year in prison), less time is spent investigating misdemeanors before a guilty plea. There are also fewer ways to appeal a misdemeanor conviction, especially when a person pleads guilty.
There were 85 known exonerations of misdemeanors between 1989 and 2017, making up only 4% of all exonerations. Many of the cases involved guilty pleas. One egregious example was in Harris County, Texas, where 57 people took plea bargains for drug possession. Harris County is unique in that they did not test the suspected drugs before accepting a guilty plea—those 57 were exonerated when the seized property tested negative. On the other hand, Harris County did test the suspected drugs eventually; other counties never test or use tests with high error rates of false positives.
Some may wonder why a person would opt to accept a criminal conviction for a crime they did not commit. Unfortunately, the criminal legal system encourages this through the idea of plea bargains. Prosecutors may want to secure a conviction by filing a less serious criminal charge or lowering the sentence imposed. In some cases, there are benefits. These include getting information on more serious crimes, avoiding a lengthy trial or pursuing a conviction on a strong and readily provable case, all while dropping a weaker case. But in an overwhelmed system where a person can spend months in jail before a trial, plea bargains have a perverse effect of punishing those who are innocent and cannot afford bail or an attorney. A person facing months away from their job or family may see a benefit to pleading guilty, taking probation or a short sentence and getting out of prison.
A person who pleads guilty will rarely be able to challenge the conviction in the future. Guilty pleas have the effect of convincing lawyers, judges, and others that a person committed the crime to which they pled. Some crimes present an easy defense—the aforementioned drug crimes in Harris County, for example. Those exonerations came from testing the “drugs” that had been seized and determining that the substances were not illegal. Without evidence of any actual crimes, those charged were exonerated.
There are plenty of other misdemeanors which carry no objective test and which no one will spend the time to investigate: petty theft, disorderly conduct, vagrancy and other crimes aimed at the poor and homeless. Without an external way of proving innocence, we simply have no way of knowing exactly how many of those who plead guilty to misdemeanors are innocent and who are not.
There is also a disturbing trend in misdemeanor innocence which relates to police misconduct. Of the 85 exonerations between 1989 and 2017, 13 exonerations came about by showing video that a police officer had engaged in misconduct or that a police officer was being investigated (or charged) with crimes committed while on duty. Six of the exonerations were based on officers being investigated for other crimes, and seven had the testimony of police officers discredited by video, including body cameras.
In other cases, gender and age stereotypes can play a role. In 1997, Fancy Figueroa was raped on her 16th birthday. Hospital tests showed she was pregnant, and the police decided she had lied about the rape to explain the pregnancy. She pleaded guilty to filing a false police report and received community service and six months of probation. In 2003, a convicted rapist submitted a required DNA sample to the State of New York that matched the DNA in Figueroa’s rape kit. She was exonerated from her misdemeanor in 2004. Instead of a false police report, Figueroa had given a false confession.
In an overworked, overburdened system where trials are rare and plea bargains make up around 95% of convictions, innocent people will sometimes take a deal and plead guilty. For misdemeanors, there is less oversight and less attention paid. A person facing a smaller punishment may choose to accept the deal rather than take on the expense and time of court or the lost wages and family issues from lengthy pre-trial detention. As a result, we will likely never know how many innocent people make this choice.