Post #296
900 words; 3 minutes to read
Summary: Being denied bail can be a major reason people decide to plead guilty even when they have a reasonable defense against a criminal charge.
Cases of wrongful conviction are big news in Canada. We have had quite a few of them, often after people have spent decades in prison. But wrongful conviction only gets attention in a small number of high profile cases. What about the much larger number of cases where wrongful convictions might occur, even where people plead guilty? How many such cases might there be, and why do they happen?
This important question is the subject of a 2022 paper by Cheryl Webster, a professor at the University of Ottawa. She asks how many such wrongful convictions there might be, and in particular how much effect the massive increase in pe-trial detention in Canada has had in creating these injustices.
How many false guilty pleas are there?
Webster concludes that ‘that innocent people plead guilty at much higher rates than what prior estimates (based almost exclusively on serious offences) would suggest.’ Currently most wrongful conviction discoveries have been around very serious cases such as murder. And the numbers are small – though far from trivial – because these cases typically only come to light because of the ‘extraordinary efforts by individuals who expend enormous resources in an effort to uncover the truth’.
Webster does not take up the question of what is meant by innocent, but one should include not only people who clearly did not commit an offence, but also those who have a reasonable case that could lead to an acquittal at trial, which happens quite often in Canada; less than half of murder trials end with a guilty verdict. However, trials are not common; perhaps 3% of criminal cases include a trial. The vast majority end with a guilty plea or, even more frequently, the charges are withdrawn.
Even if false pleas are rare, the number of people involved could be significant. In 2019-2020 there were about 150,000 criminal convictions in Canada. Even if only 1% were false guilty pleas, that would mean 1500 people with a criminal record that they should not have. Webster presents evidence that the actual rate is probably 3-5 times that high, meaning 5-7000 per year. And that’s each year; the numbers over time would soon mount up.
Why plead guilty if you aren’t?
Why would people plead guilty when they are not? ‘… the often-enormous process costs of maintaining one’s innocence may quickly overwhelm any cost-benefit analysis, in that the predicted sanction – albeit unjust – would, in most cases, likely involve no more than a non-custodial sentence or a short prison stay.’
Holding people in pre trial detention (see chart below), as is increasingly the case in Canada (despite all the talk about lax bail laws), makes the idea of pleading guilty to get out with time served highly attractive. ‘For those in remand custody, the actual punishment is often served before there has even been a conviction.’
As Webster notes, ‘most guilt is not ‘discovered’. Rather, it is ‘negotiated’.’ ‘[T]he discussions surrounding an innocent defendant’s decision to plead guilty are almost completely hidden and, as such, not part of the official record. Thus, they are largely immune to detailed review and retraction.’
Despite… calls for reform … the phenomenon of [false guilty pleas] arising from [pre-trial detention] is virtually invisible. There are few high-profile cases… they largely go undetected… They are also not easy to corroborate and it is very likely that they are predominantly found with low level offences that do not typically attract the same concerns as wrongful convictions.
The effect of pe-trial detention
A powerful contributor to the risk of wrongful conviction is that ‘we are currently living in a culture of preventative detention, irrespective of innocence or guilt or the presumption of innocence’. This trend is clearly visible in the current move to restrict bail despite overwhelming evidence that it is already to hard to get.
Webster attributes this, in turn, to a the increasing risk-aversion in the criminal justice system, so that keeping thousands of innocent people in jail is seen as a reasonable price to prevent a very small number of crimes. Half of those in remand detention are there for minor offences, including 25% of those – several thousand people – who spent 90 days or more in jails that have been described often as horrible places.
the decision to either endure these conditions for an indefinite period of time or plead guilty to a crime that the accused didn’t commit and be sentenced to ‘time served’ or transferred to sentenced custody in a more humane setting, certainly emerges as a straightforward choice.
When people are held in remand – and even when they are released on bail – they face huge obstacles such as loss of employment, loss of housing, restricted access to their families, and many other obstacles and restrictions. When the sentence is likely to be relatively light (and even when it’s not) the temptation to plead guilty to have it all over with is very powerful, whether one is guilty or not. It is had to resist the full weight of the state and its desire for a conviction.
…the entire bail system is set up to encourage guilty pleas. The fact that some of these accused will be factually innocent is an unfortunate – but foreseeable – by-product.’
This cannot be an acceptable situation in any country dedicated to justice and the rule of law.
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