Sick Deal: Plea Bargaining and COVID-19

Abstract

The COVID-19 pandemic has the potential to exacerbate a long-standing issue facing criminal courts—innocent defendants pleading guilty to get out of jail. Modern research into the cognitive science of decision-making suggests that innocent defendants are at a high risk of pleading guilty while in pretrial detention when offered a plea that will effectuate their release. This constitutes a sizable portion of criminal cases given that low-level felony and misdemeanor charges make up the bulk of criminal filings each year. The additional risk of contracting a possibly fatal illness, paired with the seeming inability of custodial facilities to provide adequate protective measures, will likely increase the pressure on innocent defendants to plead in these circumstances. At the same time, current constitutional doctrine does not recognize the coercive nature of pretrial confinement conditions on plea validity and will likely afford little relief for innocent defendants seeking to withdraw their “voluntary” guilty pleas. This emphasizes the need for prophylactic measures that will decrease the likelihood of innocent defendants pleading guilty during the COVID-19 pandemic.