How many innocent men and women are sitting in prison? No one knows, exactly, and few care. A person who’s been found guilty by a jury had their trial, right? And if they’ve lost their appeal, well, doesn’t that settle it once and for all?
We know better, of course. The Innocence Project has helped to prove that. Scores of men have been released from prison after DNA evidence conclusively proved their innocence. Many of these men were convicted on the basis of eyewitness testimony.
But what about those who pleaded guilty in open court? Don’t they deserve even less consideration than those found guilty? Innocent men don’t confess to crimes they did not commit, right?
We know better about that, too. A gathering body of evidence suggests that even innocent people confess to crimes. They do so for all sorts of reasons. Some are mentally ill, and crave the attention the confessional process yields. Others, typically the intellectually disabled, can be tricked. Sometimes folks are simply confused. Even so, confessions are regarded as the gold standard of proof by law enforcement.
To help yield confessions, officers are encouraged to get training in interrogation and interviewing techniques. This training teaches them how to build rapport with suspects, how to ask them questions designed to yield incriminating responses. Proponents of the so-called Reid Technique attend trainings all over the country, even Connecticut. The focus of this training is learning how to persuade folks to confess, even when confessing is against the interest of the suspect.
As if all this were not bad enough, our courts encourage the entry of guilty pleas by permitting defendants to plead guilty to crimes they have not committed. The law has a name for such pleas — Alford pleas, so named after a Supreme Court case sanctioning such practices.
Any defendant who wants to plead guilty must appear before a judge and answer a series of questions intended to convince the judge that the defendant is entering his plea voluntarily, and of his own free will. This process is called a canvass, or a plea colloquy. Ideally, a defendant enters a plea only after discussing his case with his lawyer. The lawyer cuts the best possible deal he can for his client. At the end of the bargaining, the client decides to accept or reject the last best effort the state has made.
It is all too common in criminal cases for clients to balk at making a choice on whether to plea. Too many folks regard the plea bargaining process as a trip to the market — they aren’t buying anything unless the price is right. That’s a horrible analogy for what goes on in the criminal courts. Better to regard the defendant as tied to a train track; unless his lawyer can derail the locomotive bearing down upon him, he will be crushed. More than 90 percent of cases are resolved by way of a plea bargain, well before a jury has the chance to decide the issues.
Does that mean all of these folks are, in fact, guilty of the crimes to which they have pleaded?
No. Not by a long shot.
The state tells a judge at the time of a plea what facts the state believes it could have proven if the case had gone to trial. A judge cannot accept a guilty plea unless there is a factual basis for it.
In what lawyers call a “straight” guilty plea, a defendant simply pleads “guilty” and the case proceeds to sentencing.
But suppose a defendant does not agree that he did what the state alleges? In other words, suppose a defendant listens to an factual recitation and says, “I didn’t do that.” Can he still plead guilty?
The answer is simple: Yes. It happens all the time.
A defense lawyer alerts the court that his client is entering an Alford plea. The judge then questions the client and asks, in effect, if the client is pleading guilty despite the fact he disagrees with the state’s factual basis. Is he doing so because he is being offered a sentence likely far better than what he’d get if a jury found him guilty? In other words, is the client trying to avoid the risk of trial?
If the client says yes, the deal is struck, regardless of his actual guilt or innocence. An innocent man can plead guilty.
Most folks have no idea that this practice is routine in many courts. In Connecticut, almost every judge in the state court system happily accepts an Alford plea: These pleas do, after all, close cases and move the docket. I’ve seen Alford pleas entered at something approaching the cognitive speed of light, a factual basis presented by the state, the defendant canvassed, and a finding of guilty made in five minutes. It’s the fastest form of assembly justice.
But no federal judge in Connecticut, or elsewhere in the country, is inclined to accept an Alford plea without a fight. In the federal system, guilty pleas are elaborate affairs, with sentencing hearings rarely taking less than 45 minutes, and sometimes lasting days. Federal judges take pains to make sure that folks only plead guilty because they are, in fact, guilty. This is in part a function of the detailed, and complex, law governing federal sentencing procedures, a system in which offense, offense conduct and defendant characteristics are reduced to numerical points, those points being used to find the right sentence on a table.
I suspect that plenty of innocent plead guilty in the state system. They do so for all sorts of reasons having nothing to do with actual guilt or innocence. I’ve met men who entered guilty pleas simply because they were weary, terrified of spending more time in prison, where they’ve moldered for months, sometimes for years, waiting for trials that never came. Some folks enter guilty pleas just to close a bad chapter in an otherwise good life.
A complex body of law has emerged governing how courts should determine whether confessions are voluntary. We ought to regard guilty pleas as a form of confession, and apply the same standards in determining whether a person pleading guilty is doing so for the right reasons. An important aid in this effort would be a far more sparing use of Alford pleas. If that results in a large backlog of cases, perhaps we ought to ask why the criminal justice system produces so many more cases than can be expeditiously handled. Perhaps too many folks are charged with crimes; I doubt we are truly a nation of criminals.