Safety from Plea-Bargains’ Hazards

Abstract

There is a significant risk—in safety terms, a hazard—that the wide gap between the defendant’s anticipated punishment if convicted at trial and the relatively lighter punishment if he confesses in a plea-bargain will lead not only the guilty but also the innocent to confessing. In practice, only 3% of all federal cases go to trial, and only 6% of state cases. In the remainder, conviction is obtained through plea-bargaining. Indeed, plea-bargains are one of the central mechanisms facilitating false convictions. In other fields, the meaning of a “safety-critical system” is well understood, and resources are, therefore, invested in modern safety methods, which reduce significantly the rate of accidents. This is the case, for example, in the aviation field, which abandoned the “Fly-Fix-Fly” approach and developed more advanced safety methods that generally follow an “Identify-Analyze-Control” model and are aimed at “First-Time-Safe.” Under this approach, there is systematic identification of future hazards, analysis of the probability of their occurrence, and a complete neutralization of the risk, or at least its reduction to an acceptable level. A false conviction is a system error and accident just like a plane crash. But in criminal law, a Hidden Accidents Principle governs and almost all the false convictions are never detected. Therefore, not enough thought has been given to the system’s safety. Empiric studies based on the Innocence Project’s findings point to a very high false-conviction rate: at least 5% for the most serious crimes. Regarding convictions based on plea-bargains, the rate is probably significantly higher since the commission of the offense and the guilt of the accused are not proved by significant evidence. This article proposes a theory and some initial tools for incorporating modern safety into the criminal justice system. Specifically, I demonstrate how the innovative “System-Theoretic Accident Model and Processes” (STAMP) safety model can be applied in the criminal justice system, by developing constraints, controls, and barriers against the existing hazards in the context of convictions based on plea-bargains. Additionally, the article suggests an innovative idea, of recognizing defendants’ right to a fair plea-bargain offer. Plea-bargains need not be dependent on the goodwill of a particular prosecutor toward a particular defendant or her defense counsel.