Jed S. Rakoff is a United States District Judge for the ­Southern District of New York and in a recent article in the New York Review of Books he discusses why so many innocent people plead guilty. He puts it down to the system that is peculiar to the US, that of plea bargains where, instead of going to trial, prosecutors and defense attorneys agree to have the defendant plead guilty to a lesser charge. So even though the defendant might be innocent, the prospect of being found guilty of very serious charges and facing very heavy punishment can persuade them that it is not worth the risk. This is why so few cases go to trial.

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial.

He says that the popularity of plea bargains increased with the rise of crime in the 1960s, much of it drug-related, that led to laws imposing severe minimum sentences and removing much of the discretion from the judges. This gave prosecutors enormous powers since they could threaten to bring charges that carried heavy penalties if the defendant does not agree.

He says that the problem is that this system is weighted heavily in favor of the prosecutor and thus it is not a deal reached between people with equal information. And since no neutral party like a judge is involved in the negotiations and since prosecutors do not have to reveal how strong the evidence is at the early stages of the process, they can offer a plea bargain at the early stage and threaten that if it is not accepted, then the offer will be worse later. Since many criminal defendants, especially the poor, have little access and contact with their lawyers, they acquiesce to a guilty plea as the best possible outcome.

How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

Rakoff recommends that we should ” eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general” and in addition add a neutral third party like a magistrate to any plea bargain discussions, as is being currently experimented with in Connecticut and Florida.

There is one issue where I disagree with Rakoff and that is when he suggests that these harsh sentencing policies and the flawed plea bargain system have resulted in at least one benefit, that of crime being reduced.

A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result?

As I have suggested in another post, there are good reasons to think that the dramatic decrease in crime rates over the last four decades have little to do with policing practices or plea bargains or sentencing rules but other seemingly unrelated things like the reduction of lead in the environment, and so this overly-aggressive policing and prosecutions did not produce the benefits claimed for it.

There is also the case that it is possible to psychologically manipulate people during interrogations to get them to confess to something that they did not do. The Innocence Project finds that “In about 30% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.”

In fact, there are interrogation specialists whose job is to get a guilty ‘confession’ using manipulative and coercive tactics. Under a long period of stress as occurs under questioning, people lose the energy and motivation to defend themselves and end up agreeing with things that the questioner says. It is a more serious variant of a more common situation where a long argument can wear you down and you end up conceding a point simply in order to get it over with.

From the outside, it may seem incredible that people would ever confess to serious crimes that they did not commit. But that is because we are not under the same conditions of highly depleted mental energy. Prosecutors depend upon our (and that of juries) sense of incredulity that anyone would make a false confession to win convictions and sway public opinion against the defendant.