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Plea-Bargain Sentences Tempt the Innocent to Plead Guilty

In a criminal trial, the prosecution bears the burden of proof. This means that to convict someone of a crime, the prosecution must demonstrate beyond a reasonable doubt that the accused person committed the alleged crime. This is an incredibly high burden of proof — and rightfully so. The American justice system strives to avoid punishing people without near-certainty that they have, in fact, committed crimes.

However, not every person accused of a crime ultimately demands that the government meet this standard. As a practical matter, many defendants opt out of trial without requiring the government to prove its case, instead electing to make a plea bargain with the prosecutor.

Some take this approach because the evidence is clear and they presume they will get lighter sentences if they cooperate with prosecutors. Others choose to plead guilty because of the financial costs of mounting defenses; legal fees add up quickly and for some defendants trials aren't financially viable options. In what many fear is a growing trend though, some defendants avoid trial merely because the potential consequences of trial are too high. This is particularly true for unpopular defendants, such as those accused of defrauding thousands of stockholders or operating major financial scams.

For an example, consider the sentencing disparity between former Enron CEO Jeffrey Skilling and Enron's former CFO, Andrew Fastow. At trial, Skilling was convicted of 19 counts of fraud, conspiracy, insider trading and lying to auditors; acquitted of nine counts of insider trading; and initially sentenced to 24 years in prison (though this sentence is likely to be reduced). Fastow faced 98 criminal counts, including conspiracy, fraud, insider trading and money laundering, but he reached a plea agreement with the government. In exchange for serving as a key witness against Skilling, he was allowed to plead guilty to only two counts of conspiracy and ultimately sentenced to only six years in prison.

Although undoubtedly Fastow received a light sentence because of his extensive cooperation, the disparity is too significant to attribute solely to his cooperation. Whether intentionally or not, the ultimate message comes across clearly: those who avail themselves of the constitutionally granted right to a jury trial risk significantly harsher penalties than those who plead guilty. Accordingly, when deciding whether to proceed to trial, guilt or innocence becomes less relevant than predicting the sentiments of a jury. A defendant must weigh the costs and benefits of trial and make an informed decision, which may have little to do with the likelihood that the prosecution can meet its burden of proof.

Of course, the potential dangers of trial are well known by many defendants. News reports regularly tell of people convicted of violent crimes who are later exonerated with post-conviction DNA testing. According to statistics presented by the Innocence Project, innocent defendants made incriminating statements, delivered outright confessions or pled guilty in about 25 percent of DNA-exoneration cases. In some contexts, defendants have long weighed the costs and benefits of proceeding to trial and decided that accepting responsibility, despite innocence or a lesser degree of fault than required for the crimes charged, would likely lead to the most favorable outcomes.

Nevertheless, clearly the goal should be to move away from such false confessions — not to expand the circumstances in which weighing the options could prompt an innocent person to plead guilty. Trials will always come with uncertainties but potential criminal penalties should be carefully considered so that innocent people are not prompted to assume guilt for fear of more significant penalties at trial.

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