The Right to a Level Playing Field: Institutional Factors Leading to Wrongful Conviction

The International Covenant on Civil and Political Rights provides in Article 14 that “All persons shall be equal before the courts and tribunals.” With this standard of fairness in mind, co-editor Brian Howe examines the devastating consequences of widely-accepted asymmetries in the U.S. criminal justice system.  Brian writes:

Each wrongful conviction is a particular and circumstantial tragedy, but as a whole they can also reflect generalized failures of our institutions of criminal law. And one of the most common institutional factors in wrongful convictions is the disproportionate power of state and federal prosecutors. Of course prosecutors, as a rule, are not interested in convicting the wrong person. But it makes sense that the ethical rules and duties of prosecuting attorneys might sometimes be subconsciously clouded by the natural desire of a human being, in an adversarial system, to “win.” Short of abandoning our adversarial system all together, the best way to mitigate against this risk is to ensure a level playing field, on which a competent defense counsel (equally motivated to win) can challenge and hopefully overcome a prosecution against an innocent man.

Some asymmetries are easy to spot and correct. Asymmetries in information, for example, are a major source of wrongful convictions. The prosecutor has access to the entire police file, but the Constitution only requires the disclosure of materially exculpatory evidence. The initial decision about whether evidence is materially exculpatory is left to prosecutors themselves, whose role in the case can make an impartial assessment of the information difficult, if not impossible. This asymmetry could be cured almost entirely by open-file discovery, paired with limited disclosure by defense attorneys. Some states are moving towards this today via changes in procedural rules governing criminal discovery.

Other asymmetries in power are harder to fix. As the number and severity of criminal statutes ratchet up, so does the leverage of prosecutors to coerce guilty pleas. While prosecutors need to have the discretion to decide which specific charges will be brought against a defendant, overcharging has become the norm in many jurisdictions. Rather than the indictment acting as a reasonable, impartial assessment of a person’s criminal liability, it serves intentionally high opening offer to a plea negotiation. This gamesmanship may end up in something like justice for actually guilty defendants, but it can also intimidate an innocent man out of risking a trial.

The power of prosecutors in plea negotiations has become concerning enough to attract the attention of federal district court judge Jed Rakoff from the Southern District of New York. Judge Rakoff explained the problem in a lecture at the University of Southern California:

“”People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial,” Rakoff said. “The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

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“Plea bargains have led many innocent people to take a deal.”

Judge Rakoff suggests eliminating mandatory minimums as a solution, but doubts it is feasible for political reasons. Instead, he suggests plea bargaining be removed from the discretion of the prosecutor and shifted to a neutral magistrate:

“What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

The devil is certainly in the details, but Judge Rakoff’s idea could have merit, and he deserves credit for creative thinking on a critical problem in criminal justice. He estimates 1-8% of the prison population may be innocent people pressured into guilty pleas. That is upwards of ten thousand people. If leveling the field in plea bargaining could alleviate even a small portion of that, it’s worth exploring.