Several recent high profile cases, including the case of the West Memphis Three, have revealed (again) that factually innocent defendants do plead guilty. And, more disturbingly, in many of the cases, the defendant’s innocence is known, or at least highly suspected, at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in three sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain that will assure their immediate or imminent release; and third, where defendants are threatened with harsh alternative punishments if they do not plead guilty. There are three primary contributing factors leading to a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This Essay discusses cases in which innocent defendants pled guilty to obtain their release—thus joining the “unexonerated”; explores the factors that “cause” innocent defendants to plead guilty; and finally proposes several options the criminal justice system could embrace to avoid, or at least ameliorate, the plight of innocent defendants who plead guilty.
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