Sentence discounting: a risk to the vulnerable

In a literature review published in 2019, Sentence Discounting: sentencing and plea decision-making, Dr Rachel McPherson discussed a number of issues surrounding the practice of accused people being given a reduced sentence in return for pleading guilty. 

The review stated that “the sentence differential [sentence discounting] might encourage the innocent to plead guilty” (Gormley et al, 2019, p 13). From our point of view, we at SOLD have long suspected that people with communication support needs (“CSN”) can be vulnerable to entering false guilty pleas. However, this was the first time I had become aware of the debate within the legal profession concerning the potential risks.

The review points to a lack of usable, empirical data in this area (Gormley et al, 2019). And I too have to admit that I am not aware of any empirical evidence that people with CSN have been wrongfully convicted by false guilty plea. Partly, this is due to it being almost impossible in Scotland to appeal against conviction where the accused has pleaded guilty, so evidence, if it does exist, has little hope of coming to light. There is, though, substantial evidence from criminology and disability studies that supports our belief that we ought to expect people with CSN to be vulnerable in relation to the decision to plead.

Vulnerability and CSN

Decision-making

Bruno Minn, legal director of the campaign organisation Fair Trials, stated in an episode of Law in Action, broadcast on BBC Radio 4 on 1 November 2022, that the decision to plead is one of the most important decisions a person can ever face in their lives. This is particularly crucial to understand, because decision-making is an acknowledged and well understood area of vulnerability for people with CSN. It is precisely why, in other areas affecting the lives of people with CSN such as health and social care, there are safeguards in place to protect people. 

Substitute decision-making mechanisms – such as powers of attorney and guardianship orders under the Adults with Incapacity (Scotland) Act 2000 – appoint a third party to make decisions on a person’s behalf, should they be deemed to lack capacity. The self-advocacy movement tends to favour alternatives such as supported decision-making, whereby the person is supported to make their own decision, rather than have that power removed.

Among both professionals and self-advocates, there is clear agreement that people with CSN need support and safeguards if they are to be able to make properly informed decisions. And yet, people with CSN are often expected to navigate the complexities of the decision to plead with little or no support, and subject to a multiplicity of pressures, influences, and inducements. 

Behaviour traits

There is a substantial body of research in the area of intellectual disability and false confessions under police questioning. The Icelandic forensic psychologist, Gisli Gudjonsson, has published a considerable amount of work explaining the ways people with CSN are more vulnerable than non-disabled people to falsely confess to a crime they did not commit: “A number of miscarriages of justice have shown that, if they are interviewed by the police, suspects with intellectual disabilities may be seriously disadvantaged, and may sometimes even make false confessions” (Clare and Gudjonsson, 2010).

Gudjonsson, and others working in the same field, have identified certain behaviour traits associated with intellectual disability which make people more vulnerable to false confession. First, suggestibility is common among people with CSN, and it can be very easy to put words into a person’s mouth, even unintentionally. Secondly, acquiescence, also a common trait, often shows itself as an eagerness to please and appear helpful. This is especially true when faced with figures of authority – which a defence agent undoubtedly is. 

The following example was reported to us by an appropriate adult: “In police interview, the man I was supporting was asked the same question twice. The second time, his answer directly contradicted the first one. I intervened to find out why. He said he was trying to be helpful. The policeman didn’t like his first answer, so he gave him a different one.”

Add to this the findings from recent research detailing the predisposition of people with autism to be more compliant with authority than people who are considered neurotypical (Chandler et al, 2019), and we can begin to appreciate just how vulnerable people with CSN can be to being influenced in their decision-making. I think we can reasonably analogise that the same factors which make people vulnerable to false confessions, are equally at play in the decision to plead.

The following conditions may encourage an innocent person with CSN to plead guilty: 

• inducement of a short-term benefit without the support to make a properly informed decision, or fully understand the longer-term implications;
• the innate tendency towards suggestibility, acquiescence, and compliance, especially if a guilty plea appears to be the defence agent’s desired outcome;
• pressure to make a quick decision.

How does this vulnerability show itself in practice? 

A recent report by Fair Trials, Young Minds, Big Decisions: an insight into the experiences of young adults pleading guilty to crimes in England and Wales, highlights several ways young people can be vulnerable to unfair outcomes in relation to guilty pleas. Many of these findings chime with the experiences of people with CSN, who have contacted SOLD to seek help.  

These are:

• A tendency to focus on the short-term benefits of pleading guilty, but without being supported to appreciate the longer-term consequences. One woman with foetal alcohol syndrome, despite privately maintaining her innocence, was so terrified of standing trial in court that she chose to plead guilty to avoid it, going to prison as a result.
• Feeling pressured to make a quick decision. People with CSN naturally need more time to make an informed decision. One teenage man with autism was forced to make a quick, unsupported decision, and pleaded guilty to avoid any possibility of going to prison. He did not appear to appreciate the impact that being on the sex offenders register would have on the rest of his life, and for how long. This is supported by one of the young adults: “I just feel like that whole thing was very, very rushed” (Fair Trials, 2022, p16).
• Lack of support to make an informed decision, including not understanding the consequences of pleading guilty until it was too late. One man with autism told us: “I was not advised of any of the adverse consequences of pleading guilty.”
• Lack of support for communication difficulties. It is a common complaint that all the business relating to a person’s case is conducted in language that people with CSN simply cannot understand. This often leads to people making decisions which they later regret.
• Lack of awareness of the justice process and how the system works. This can lead people to making naïve, but also tragically ill-informed decisions. One man with autism reported his thinking process as: “I fixated on the best possible outcome: I would plead guilty, as a temporary measure. The police would finish investigating the true perpetrator. The true perpetrator would be charged and prosecuted, as I had been. I would be exonerated. Yes, that was the right thing to do…”

Particularly alarming is the frequency with which people have reported feeling pressured by their defence agent into pleading guilty. One woman whose adult son has autism told us: “I am convinced that his defence team thought he would plead guilty and now that I look back that was definitely the agenda, and they didn't want me there. Just as well I was. I can't even bear to think of what would have happened if I hadn't been there. I am 100% convinced that he would have pleaded guilty because they told him to. How's that justice for a vulnerable person?” 

Another man with autism said: “I now know that my defence team subjected me to improper pressure and improperly narrowed my options. After leaving the meeting, I collapsed on the pavement and wept.”

One of the young people also said: “There’s a lot of pressure put on you. And I think a lot of the reasoning for that is because it can quite often feel the decision’s already made for you” (Fair Trial, 2022, p 16).

What might reduce the risk of unfairness? 

The principal problem with current practice is the lack of any meaningful safeguards around the decision to plead, particularly a mechanism to appeal against conviction following a guilty plea, or a means of reviewing the validity of a person with CSN’s guilty plea. I am in no position to dictate, but just as my experience working in the field of learning disability makes me alert to potential areas of vulnerability, so there are examples of measures from other areas of my work that might help to guard against the risk of wrongful conviction, and improve equal access to justice.

In general it would be good practice in cases where the accused is identified as a person with CSN, for a person’s guilty plea to be treated with caution. I can also suggest three possibilities as meaningful safeguards that might help to reduce risks for them. 

The first of these might be to allow for a guilty plea to be independently verified by a third person before it is accepted by the court. This ought to be carried out by someone independent of the legal process. It could be an independent advocacy worker, or a social worker, or a speech and language therapist. The purpose would be to confirm that pleading guilty is definitely the decision the person wishes to make.

Secondly, there does need to be a quick and easily accessed legal procedure by which guilty pleas can be challenged and reviewed, in cases where there is any question as to the validity and safety of the guilty plea entered. There should also not be any time limit applied, after which an appeal is considered invalid. It can take time for concerns to emerge. Where a person with CSN, after conviction on a guilty plea, privately maintains their innocence, there needs to be an expedient means of correcting any wrong that has occurred. It cannot be right that people currently have no realistic means of recourse.

Thirdly, it might be helpful to embed a system of supported decision-making into the process. This would be beneficial for any stage along the justice pathway, but in this context, it would be especially so as part of the pre-trial stage, and the decision-making process associated with entering a plea.

Without the right supports and safeguards in place, people with CSN are vulnerable to unfairness at all stages of the justice system. In relation to the decision to plead, it is relatively easy to appreciate how people can be at risk of an unfair outcome. We all want a justice system that is fair and equal to all, including victims, witnesses, and accused. None of us want to see innocent people encouraged to plead guilty.