Josh Bowers’s article Punishing the Innocent is a terrific contribution to the plea-bargaining literature. Bowers, a former public defender, cuts through many of the misguided assumptions that cloud thinking about plea bargaining. For one, he is absolutely right to refocus attention away from the few violent felonies to the overwhelming number of low-level misdemeanors and violations. The market and shadow-of-trial metaphors have some validity for the highest-stakes cases. For murders, rapes, and terror-ism prosecutions, public monitoring and retributive outrage discipline prosecutors, and the desire to minimize sentences drives defendants. But the market or shadow-of-trial model has little relevance for low-level crimes, for which the desire to get it over with overwhelms the nominal sen-tences. As Malcolm Feeley famously argued, the process is the punishment.

Another valuable contribution of Bowers’s article is to focus attention on recidivists. The spectre that an innocent person like you or me might face mistaken conviction haunts many discussions of the innocence problem. As Bowers notes, this fear is greatly exaggerated. Police are unlikely to target and assume the guilt of citizens with clean records, and the absence of prior convictions makes it easier for law-abiding citizens to speak in their own defense at trial. Moreover, those with clean records have greater incentives to clear their names to avoid criminal records in the first place. But recidivists, as unsavory as they are, are much more likely to be swept up in a dragnet of guilt by association. And because they already have criminal records, they may be much less reluctant to rack up one more conviction even if it is unjustified. This phenomenon may exacerbate existing race and class disparities, as those who are punished once are more likely to be the usual suspects.