Confessions Without Consequence: The Case for Attorney General Deference

*Artificial Intelligence (“AI”) companies are racing to create Artificial General Intelligence, or “AGI.” If they succeed, the result will be human-level AI systems that can independently pursue high-level goals by formulating and executing long-term plans in the real world. By default, such systems will be “misaligned”—pursuing goals that humans do not desire. This mismatch of goals will put humans and AGIs into strategic competition with one another. Thus, leading AI researchers agree that, as with competition between humans with conflicting goals, human-AI strategic conflict could lead to catastrophic violence. Existing law is not merely unequipped to mitigate this risk; it will actively make things worse. This Article is the first to systematically investigate how law affects the risk of catastrophic human-AI conflict. It begins by arguing, using formal game-theoretic models, that under today’s legal regime, humans and AIs will likely be trapped in a prisoner’s dilemma. Both parties’ dominant strategy will be to permanently disempower or destroy the other, even though the costs of such conflict would be high. The Article contends that one surprising legal change could help to reduce catastrophic risk: AI rights. Not just any rights will do. To promote human safety, AIs should be given the basic private law rights already enjoyed by other non-human agents, like corporations. AIs should be empowered to make contracts, hold property, and bring tort claims. Granting these rights would enable humans and AIs to engage in iterated, small-scale, mutually beneficial transactions. This, we show, changes humans’ and AIs’ optimal game-theoretic strategies, encouraging a peaceful strategic equilibrium. The reasons are familiar from human affairs. In the long run, cooperative trade generates immense value, while violence destroys it. Basic private law rights are not a panacea. The Article identifies many ways in which catastrophic human-AI conflict may still arise. It thus explores whether law could further reduce risk by imposing a range of duties directly on AGIs. But basic private law rights are a necessary prerequisite for all such further regulations. In this sense, the AI rights investigated here form the foundation for a Law of AGI, broadly construed.Show More

­­­The Supreme Court’s recent decisions in Glossip v. Oklahoma and Escobar v. Texas have surfaced an understudied and increasingly consequential phenomenon in American criminal law: the prosecutorial confession of error. Anglo-American courts have recognized such confessions for centuries, and Young v. United States commands that federal courts afford them “great weight.” Yet judicial practice has grown increasingly inconsistent—most acutely at the state level, where courts routinely treat confessions as ordinary litigation positions rather than as the considered judgment of the sovereign’s chief law officers. This dysfunction reaches its apex when the confessor is a state attorney general, whose constitutional authority, democratic legitimacy, and investigative capacity distinguish them from every other prosecutorial actor. Glossip illustrates the problem starkly: the Oklahoma Attorney General confessed error in a capital case after a comprehensive independent investigation, only to have the Oklahoma Court of Criminal Appeals dismiss the confession as “not based in law or fact.”

Pulling from state case law that the literature has largely ignored, this Note argues that the current approach cannot be defended. It proposes a structured four-factor framework—merits, motives, institutional credibility, and equities—designed to restore coherence to confession-of-error doctrine, to vindicate the unique institutional role of state attorneys general, and to ensure that when the State concedes its case cannot stand, the judiciary listens.

Introduction

When Oklahoma Attorney General Gentner Drummond reviewed Richard Glossip’s capital murder case, he formally confessed error.¹ 1.Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)).Show More Following an independent investigation commissioned by the state legislature,² 2.See id. at 621 (describing an independent investigation conducted by law firm Reed Smith).Show More Drummond concluded that prosecutorial misconduct had fatally compromised Glossip’s conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) responded with dismissiveness, stating that “[t]he State’s concession is not based in law or fact.”³ 3.Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226.Show More The OCCA offered little explanation for this rejection and ultimately declined to vacate Glossip’s death sentence.⁴ 4.See id. ¶ 12.Show More This extraordinary rejection of a confession of error reflects a doctrine overlooked, where state court approaches to prosecutorial confessions remain inconsistent and underdeveloped as lives hang in the balance.⁵ 5.Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”).Show More Weeks later, the Texas Court of Criminal Appeals (“TCCA”) followed suit,⁶ 6.Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023).Show More rejecting the Travis County District Attorney’s confession in Areli Escobar’s capital case even though the Supreme Court had previously remanded the case “in light of the confession of error.”⁷ 7.Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).Show More Escobar then returned to the Supreme Court, with one question presented squarely addressing the confession-of-error component—namely, whether the Fourteenth Amendment’s Due Process Clause requires reversal when “a capital conviction is so infected with errors that the State no longer seeks to defend it.”⁸ 8.Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934).Show More The Supreme Court denied certiorari, leaving the doctrinal issue alive and unwell.⁹ 9.Escobar, 145 S. Ct. at 1423 (denying certiorari).Show More

Glossip and Escobar reveal a deference doctrine unadopted in state courts. At the federal level, Young v. United States asks that courts give “great weight” to confessions of error by federal prosecutors.¹⁰ 10.Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”).Show More But the established analogs in state courts oftentimes prove toothless.¹¹ 11.The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states).Show More When state courts continue to imprison defendants despite credible confessions of error by state prosecutors, they undermine notions of fundamental fairness, separation of powers principles, and predictability in the law.¹² 12.Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling).Show More

State courts compound this dysfunction by overlooking institutional distinctions within the prosecutorial hierarchy. Although prosecutors generally warrant some degree of deference when confessing error, confessions by attorneys general—who are elected officials with statewide constitutional authority to represent the sovereign—should receive heightened deference. This Note argues for such meaningful deference to attorney general confessions, but the Court’s decision in Glossip reflects a more fundamental concern: state courts’ refusal to honor any prosecutorial confession, even when both parties agree that a conviction cannot stand.¹³ 13.Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome).Show More While some state courts do formally acknowledge the attorney general’s position, they do not discuss the attorney general’s uniquely situated legal role and do not provide the meaningful deference this Note argues for.¹⁴ 14.See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role).Show More This institutional blindness reduces all prosecutorial confessions to mere litigation positions, ignoring the unique democratic, constitutional, and functional virtues that distinguish state attorneys general from sovereign litigators at every other level—local, state, and federal.¹⁵ 15.See infra Section III.B for a discussion of these virtues.Show More

This Note addresses a critical gap in both scholarship and case law. While existing literature examines the Solicitor General’s confessions before the Supreme Court, practically no scholarship examines the confessions of state attorneys general in state court or state prosecutorial confessions writ large¹⁶ 16.See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context).Show More—despite their increasing relevance across criminal contexts.¹⁷ 17.See infra Part III (discussing Glossip and Escobaras two major recent cases).Show More The Note undertakes an extensive review of state case law and federal appellate decisions originating in state court. It reveals that state courts consistently deny what this Note terms “meaningful deference” to executive admissions, particularly those from state attorneys general despite their distinctive institutional position.

The Note proposes a structured framework to replace the ad hoc approach currently governing confession doctrine. The absence of principled evaluative standards produces unpredictability and inequality when courts review prosecutorial confessions. A uniform analytical framework—built on four weighted factors—provides a blueprint without dictating outcomes or stripping state courts of institutional autonomy. By offering courts a common set of considerations adaptable to varied state procedures, this framework ensures that deference has substantive meaning across jurisdictions while highlighting why state attorneys general merit unique treatment.

The Note proceeds in four parts. Part I defines confession-of-error doctrine and examines its development. Part II surveys the modern landscape. Part III emphasizes the indeterminate nature of modern judicial approaches. Part IV proposes a manageable framework and applies it to high-profile cases while anticipating objections.

1.  Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)). ↑
2.  See id. at 621 (describing an independent investigation conducted by law firm Reed Smith). ↑
3.  Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226. ↑
4.  See id. ¶ 12. ↑
5.  Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”). ↑
6.  Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023). ↑
7.  Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.). ↑
8.  Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934). ↑
9.  Escobar, 145 S. Ct. at 1423 (denying certiorari). ↑
10.  Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”). ↑
11.  The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states). ↑
12.  Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling). ↑
13.  Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome). ↑
14.  See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role). ↑
15.  See infra Section III.B for a discussion of these virtues. ↑
16.  See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context). ↑
17.  See infra Part III (discussing Glossip and Escobar as two major recent cases). ↑