September 21, 2007
How many innocent "guilty" people are there?

Blonde Justice explores a fascinating and dangerous question: What percentage of people who plead guilty to a crime in court really aren't guilty? She provides an example of how this can happen:

I had a case just last week, where my client told me that he "didn't do it," and came to court every month for months waiting for his trial. And I knew, no matter how it shook out, that we had a good shot at trial. And, worse case scenario, he was probably facing probation and some fines.

Recently, though, my client lost his job. Last week, he got hired for a new job. He told them that he could start the day after we had court. So, he asked me, "Can you just work out the best possible plea for me today? I won't be able to keep taking off work at my new job." I explained to him that he had consistently told me he was innocent, and that I thought we had a good shot at winning at trial, and that to plead guilty he'd have to "admit his guilt" to the judge.

And he told me, "I just can't afford to lose this job. I just need to get this over with." It was his fourth or fifth day spent in court.

I went to the prosecutor to work out a plea. And I said to him, "Look, I don't think my guy did it. But he wants to get this over with." I laid out the evidence I thought the prosecutor would have at trial, I laid out the evidence I would have, some of which I had been saving for trial. I think the prosecutor recognized that this was working out well, and offered my client just a fine, no time on probation.

So, he pleaded guilty, "admitted" his guilt.

It's kind of a weird thing, because of course I'm never allowed to lie to the court... but this is kind of a lie, right? I stood next to my client and let him lie and say he did it, after he told me twenty times he didn't do (and had kind of proven it to me).

I guess the cynic would say, "For all you know, he could have been lying when he said he didn't do it, and finally telling the truth when he was pleading guilty." But, really, then why doesn't the reverse work? If my client had told me twenty times he did it, and then I led him through testimony in which he finally claimed that he didn't do it, I would be suborning perjury.

But guilty pleas are what makes our judicial system efficient. So, I guess a little lying is allowed for that purpose only.

The comments contain various estimates by defense attorneys as to how many of their clients they thought were actually not guilty. Grits picks it up from there.

So the range of estimates among Blonde Justice commenters of the number of innocent defendants who confess or plea to crimes they don't commit ranged from 1-15%. (I'd be curious to hear the opinion of Alan Hirsch, who blogs at The Truth About False Confessions, on this subject.) Personally I might have guessed 1-2%, overall, and was surprised by the higher estimates. What do you think is the right number?

Statewide, roughly 3/4 of a million Texans - about one out of 20 adults - are in prison, on probation or on parole. So taking the low range of the estimates on Blonde Justice, if 1% of those folks didn't commit the crime, that would mean Texas currently has around 7,500 innocent people under control of the criminal justice system. If the figure really were as high as 10%, that would mean Texas had convicted 75,000 innocent people who are currently under state supervision! I hope that's a dramatic overestimate, but there's really no way to know.

Food for thought, no? Yes, I know, no system will ever be perfect, and mistakes will be made by human beings all the time. I'm bringing this up to emphasize that one, each one of these mistakes made by human beings directly and adversely impacts other human beings, and two, it's because of our imperfections and the costs they impose that we need to have a process that takes seriously the need to fix the problems we uncover. If it can happen to these thousands of Texans, it can happen to you or someone you know.

Posted by Charles Kuffner on September 21, 2007 to Crime and Punishment