Skip to main content
Article
The Innocence Effect
Duke Law Journal (2012)
  • Oren Gazal-Ayal
  • Avishalom Tor
Abstract

Nearly all felony convictions—about 95%—follow guilty pleas, suggesting plea offers are very attractive compared to trials. Many scholars, in fact, argue plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend plea offers only benefit innocent defendants, providing an alternative to the risk of a much harsher sentence at trial they may wish to avoid. Both detractors and supporters thus believe plea bargains often lead innocents to plead guilty. The two camps in the debate, moreover, also share the view that defendants’ culpability matters little for the rate of plea bargaining, since prosecutors adjust plea offers to attract defendants in strong and weak cases alike. This article provides evidence, however, for the hitherto neglected “innocence effect.” We show innocents are significantly less likely to accept plea offers than their guilty counterparts, even where these offers appear objectively attractive in light of the expected sanction at trial. The innocence effect, in turn, reveals not only that the first commonly held assumption—of false pleading—is overstated, but also that the second assumption—of culpability irrelevance—is plainly wrong. After substantiating the innocence effect, we explore its psychological causes which then provide the foundation for our positive and normative analyses of plea bargaining. Theses analyses find that both plea detractors and its supporters must reevaluate, if not reverse, their long-held positions to account for the innocence effect and its causes. We conclude by offering two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether.

Keywords
  • Plea Barganing,
  • Wrongful Convictions,
  • Emprical Legal Studies
Publication Date
2012
Citation Information
Oren Gazal-Ayal and Avishalom Tor. "The Innocence Effect" Duke Law Journal Vol. 62 (2012)
Available at: http://works.bepress.com/oren_gazal_ayal/14/