Conviction by Consent? Vulnerability, Autonomy, and Conviction by Guilty Plea

Abstract

A criminal conviction resulting from a guilty plea rather than a full trial is typically justified on the basis that the defendant had the ability to go to trial, but instead chose to admit guilt in exchange for a small sentence reduction. In other words, the conviction, and associated waiver of rights, occurred by consent. In this article, I challenge that notion by drawing on psycho-legal research on vulnerability and consent and research on guilty pleas in the United States. I suggest that whilst plea procedure in England and Wales has largely escaped criticism due to modest sentence reductions compared to the United States ‘plea bargaining’ system, aspects of the system are highly problematic and are likely to be leading to non-consensual guilty pleas, in which innocent defendants are pleading guilty.