By Jessica S. Henry, author of Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened (forthcoming, Fall 2020)

This guest post is part of our ASC blog series published in conjunction with the meeting of the American Society of Criminology in San Francisco, CA, November 13-16.

On August 12, 2019, Cody Gregg, a homeless man from Oklahoma, was stopped by the police for the crime of riding a bicycle without a working rear headlight. When the police searched his backpack, they found 41 grams of a powdery substance. Gregg explained it was powdered milk provided by a food pantry.  He was arrested anyway.

On October 8, 2019, two months after his arrest, Gregg pled guilty to possession of a controlled substance with the intent to sell.  A judge sentenced him to fifteen years in prison.

Just two days after Gregg’s guilty plea, the lab results came back negative. The “cocaine” found in Gregg’s possession in fact was powdered milk. Gregg’s conviction for a crime that never happened was vacated and he was promptly released.

Gregg is certainly not the first innocent person to plead guilty to a crime he or she did not commit. The National Registry of Exonerations (NRE) includes at least 500 innocent people wrongly convicted of a crime after their plea of guilty.  The NRE data is a massive undercount of the innocence plea problem, because most people who plead guilty never challenge their conviction and are never exonerated.

Gregg explained he pled guilty to get out of the Oklahoma County jail, where he was being detained pretrial.  The County Jail is notorious for overcrowding, noxious mold, and disturbingly high rate of suicide among its inmates.

But innocent people plead guilty for all kinds of reasons.  They plead because they can’t make bail, and they need to get home to their children, their jobs or their elderly parents.  They plead guilty because they are afraid of the severe sentence they might receive after a trial. They plead because their harried lawyers tell them to.  They plead guilty to get out of prison, even if they should not have been there in the first place. 

Gregg was incredibly fortunate that the results of the lab tests came back so quickly, and that the results were shared with the judge, the prosecutor and the defense.  In many cases involving a quick and early plea, the “controlled substance” may never be tested at all, leaving the innocent person stuck with his plea conviction and sentence.

And here’s the thing. The law does not distinguish between factually innocent and factually guilty people after a guilty plea. Guilty pleas – even those for misdemeanor crimes — carry severe consequences, including nearly insurmountable barriers to employment, housing and benefits.

Sweeping reforms are necessary to reduce the innocence plea problem.    As I detail in my forthcoming book, Smoke but No Fire, Convicting the Innocent of Crimes that Never Happened (forthcoming, Fall 2020), we could start reform efforts by looking at policing practices that over-target low level offenses in poor communities and communities of color. We could examine prosecutorial charging practices, implement bail reform, and develop new rules prohibiting guilty pleas in drug cases without lab results. We could also reconsider the role of judges in the plea process, reduce “trial penalties,” and think about ways to reduce harsh sentencing policies.

A system where innocent people routinely plead guilty is fundamentally broken. There may be no easy solution. But without broad and holistic changes to criminal justice practices, vulnerable but innocent people like Gregg will continue to plead guilty to crimes they did not commit.