Plea Bargaining Reforms to Protect Innocent People


We want to introduce you to a man named Damian Mills. At the age of 20, Damian was a North Carolina citizen, a proud father, and a convicted murderer. But, due to our country’s flawed justice system, Damian was convicted and served nearly 15 years in prison for a crime he didn’t commit. How did this happen? 

On September 18, 2000, three armed men burst into Shaun Bowman’s home in Fairview, North Carolina. The men told everyone to get down. When Shaun’s father, Walter, who had been trying to sleep in the bedroom, heard the commotion, he opened the door, but quickly closed it when he saw the scene. One of the men shot through the bedroom door and hit Walter, killing him.

In the following days, many tips were phoned into the Buncombe County sheriff’s office, including one regarding the true suspect. But that tip was almost immediately dismissed due to the deputies’ belief that one of the accused was already in custody for a previous crime. The tip the police did pursue, however, did not accuse Damian Mills, but a group of men that he knew, including 16-year-old Larry Williams. 

All were brought in and all, including Larry, initially denied any involvement in the homicide. Larry was questioned twice more and continued to deny involvement. Then Bobby Medford, the Buncombe County Sheriff, questioned Larry alone. During this questioning, Larry did not have a guardian or lawyer present and was barraged by shouts claiming that the police had plenty of evidence against him and that if he didn’t confess he would go to jail for life. Under this extreme pressure, Larry confessed and was pressured through leading questions to implicate other men, including Damian Mills. Immediately following the confession, Larry told other officers that what he said wasn’t true. He had just wanted the interrogation to end. But that was enough.

The day after Walter Bowman’s murder, gloves and bandanas were found near the scene of the crime. They were sent in to be DNA tested; none of the results were a match for any of the accused men. A tape was recovered from a nearby gas station, allegedly showing the men who committed the crime. But, sometime between when the police received it and when they officially logged it, the crucial part of the film had been taped over by a soap opera. 

None of these facts were revealed to the defendants or their attorneys. In fact, the police even lied and claimed they had evidence that didn’t exist. This police behavior, combined with Larry’s confession and advice from Damian’s court-appointed attorney made Damian consider the plea deal he had been offered. He wanted to enter an Alford Plea, a plea in which a defendant can be convicted without an admission of guilt. When the judge refused, Damian pled guilty to a crime he didn’t commit.

Damian Isn’t the Only One

Damian is 1 of 803 people in the United States since 1989 who pled guilty and were later proven innocent. That number is continually growing. The fact that hundreds of innocent people are pleading guilty suggests that there are incentive problems within our justice system. Sadly, this is not a small issue. More than 90 percent of cases in the United States are disposed of by a plea bargain. By one estimate, a plea deal is entered into every two seconds during the average American workday.

The United States has a Long History of Plea Bargains

The history of plea bargaining in the United States dates back to the mid-19th century. It originated in response to overcrowded court dockets and the high cost of conducting jury trials. By the mid-20th century, plea bargaining had become a widely accepted practice in the American criminal justice system.

Plea bargaining became increasingly common during the 1960s and 70s. During this time, the United States experienced a surge in crime rates, which led to a significant increase in the number of criminal cases brought to trial. The resulting backlog of cases in the court system put a strain on the criminal justice system, prompting prosecutors and defense attorneys to seek alternative means of resolving cases more quickly and efficiently. Limited time and resources for jury trials has created an incentive for prosecutors and defense attorneys alike to opt for plea bargaining instead of a trial. Plea bargaining allows both prosecutors and defendants to achieve their objectives without going to trial. For prosecutors, plea bargaining offers the opportunity to secure a conviction without the risks and costs associated with a trial. 

On the defendant side, researchers have offered several reasons for defendants to enter into a plea deal. First, plea deals offer the chance to reduce their potential sentence or avoid a more serious charge altogether. Second, people want to end the process and get their lives back. Third, many receive advice from poorly incentivized attorneys. Finally, defendants want to avoid the threat of a harsher sentence, particularly the death sentence, at trial. One study found that among people whose charges were likely to be acquitted, diverted, or dropped, people who were detained before trial were 4.7 percent more likely to plead guilty, especially if given a time-served sentence. This is because people want the process to end and to reduce uncertainty. Trials can consume so much time and money that it is often easier for someone to plead guilty to a crime they didn’t commit than to go through the trial process.

 The rise of plea bargaining has also been attributed to changes in the legal system itself. The Supreme Court’s 1963 ruling in Gideon v. Wainwright, which guaranteed the right to counsel for criminal defendants, made it more difficult for prosecutors to secure convictions in cases where defendants had legal representation. In response to the increased difficulty of convictions, prosecutors turned to plea bargaining as a means of resolving cases more efficiently. Since entering a plea deal prevents a case from going to trial at all, the right to legal counsel becomes significantly less valuable.

There are Many Potential Solutions to This Plea Bargain Dilemma

Because so many cases (over 90 percent) end in plea deals, it is imperative that we ensure that incentives are properly aligned to actually promote justice in our justice system. The literature suggests a few ways to remedy the current situation. They include

  • enforcing strong penalties for prosecutors for wrongful convictions
  • limiting the number of plea deals prosecutors can offer
  • excluding plea bargains from the conviction rates of prosecutors
  • having a judge evaluate whether the evidence against someone is strong enough to warrant a plea deal

These solutions could be the first step in bringing justice back to our justice system.

Exploring an Auditing Solution

Another possible solution would be an auditing system in which everything would proceed as normal with the addition of a random probability that a case disposed of by plea bargaining is audited. If the case is audited, it goes before a jury that determines whether or not they believe there was enough evidence against the defendant to warrant the offering of a plea deal. If not, the prosecutor will face a punishment, incentivizing them to only offer plea deals to defendants who are most likely to be guilty.

Enforcing Strong Penalties for Prosecutors for Wrongful Convictions

The likelihood of wrongful convictions decreases when a case goes to trial. Therefore, enforcing strong penalties for prosecutors for wrongful convictions would incentivize them to be more careful when considering a plea bargain, potentially minimizing the number of innocent people being wrongly convicted. Penalties could include reprimands, suspensions, or revocation of licenses dependent on the severity of their misconduct which led to the wrongful conviction.

Limits on the Number of Plea Deals Prosecutors can Offer

Limiting the number of plea deals that can be offered by prosecutors would help prevent plea bargains from being abused and overused. Instead, it would encourage prosecutors to only use plea deals in cases in which there is significant and credible evidence for a conviction. This practice would prevent the pressuring of innocent individuals into a plea deal.

Excluding Plea Bargains From the Conviction Rates of Prosecutors

In today’s justice system, prosecutors are rewarded for their number of convictions, not justice. Since it is much more efficient to get convictions through the process of plea bargaining than going to trial, prosecutors will present individuals with plea deals whenever possible in order to increase their conviction rates. However, if plea bargains are excluded from conviction rates, prosecutors will be less inclined to choose plea deals over going to trial.


Fourteen years after his guilty plea, after serving his entire sentence, Damian Mills was finally exonerated based on the DNA evidence held back during the early investigation. Those were 14 years lost. Damian lost 14 years of watching his daughter grow up, and our country lost 14 years of Damian working as a productive, contributing member of society.  

Plea bargaining in America is in need of reform in order to ensure true justice. In today’s justice system, plea bargaining serves as a hindrance to a “fair and speedy trial.” Due to its efficiency and the ability of the accused to be easily pressured into entering a plea deal, innocent people often feel that their best option is a plea deal, and will enter, even if they are innocent. There are multiple methods by which plea bargaining can be made more just including an auditing system, penalties and limits for prosecutors, and excluding bargains from conviction rates.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.