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New NACDL & FAMM Documentary on Plea Bargaining and the Trial Penalty

If you haven't watched the new documentary on plea bargaining and the trial penalty from FAMM and the NACDL, I highly recommend the film to you. The documentary, entitled "The Vanishing Trial," captures the difficult choices faced by defendants when confronting the trial penalty and focusses on four stories that leave the viewer with a vivid sense of the manner in which plea bargaining is jeopardizing our Constitutional right to a trial. 
More information about the documentary and how to view the film is available here.  From the website: Imagine you’re charged with a crime. Now you must choose between pleading guilty and receiving a shorter sentence–or going to trial and risking decades behind bars.“The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice. Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutional right to tr…

Professor Dervan's Research Discussed in Flynn Brief

Many in the public and the legal profession are closely following the many twists and turns of the Michael Flynn prosecution. Flynn, President Trump's former National Security Advisor, pleaded guilty in 2017 to making false statements during an interview with the FBI. In early May, 2020, however, the Department of Justice filed a motion to dismiss the prosecution, setting off a complex back and forth between the Department of Justice, Flynn's defense team, and the judge in the case, Judge Emmet Sullivan. The government's motion eventually led Judge Sullivan to seek advice regarding how to proceed from former federal judge John Gleeson. Judge Gleeson recently released a lengthy report reconstructing the prosecution and recommending that Judge Sullivan proceed with sentencing Flynn, despite the government's attempts to drop the case. In addition to deciding whether to accept the government's motion to dismiss the case or proceed with sentencing based on Flynn's 2…

Professor Dervan Files Amicus Brief with the U.S. Supreme Court Regarding Plea Bargaining and Innocence

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I filed my first Amicus Brief with the U.S. Supreme Court last week.  The Brief was filed in support of the petitioner in the case of Taylor v. Pima County, Arizona et al.  The petitioner, Louis Taylor, accepted an offer to plead no contest and go home after spending 42 years behind bars following his wrongful conviction.  As Judge Schroeder stated in the lower court, “He accepted the offer, since his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years.”  It should come as no surprise that after over four decades the Taylor case should conclude with a plea.  As acknowledged by the Supreme Court in Lafler v. Cooper (2012), “[C]riminal justice today is for the most part a system of pleas, not a system of trials.”  But this case does not end with Taylor’s freedom.  Unfortunately, the Ninth Circuit recently ruled that he should now be barred from recovering damages for the alleged grievo…

The Pursuit Podcast - Pressured to Plead Guilty

Readers of this blog will be interested to listen to the recently released podcast from The Pursuit entitled "Pressured to Plead Guilty." In the podcast, I offer thoughts on the role of plea bargaining in the modern American criminal justice system. The podcast also features Clark Neily (Vice President for Criminal Justice at the Cato Institute), Kevin Ring (President of Families Against Mandatory Minimums), and Molly Gill (Vice President of Policy at Families Against Mandatory Minimums). The podcast does a wonderful job of weaving together policy considerations and the history of plea bargaining with the story of Kevin Ring's difficult decision whether to take a plea deal in return for a significant offer of leniency. Thank you to Landry Ayres and the Cato Institute for putting together such an informative and engaging discussion of plea bargaining. It was an honor to appear on the program.
As I said in my closing thoughts during the podcast, "[W]e think back to the…

Professor Dervan Testifies Before the Federal Senate of Brazil

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On August 6, 2019, I had the opportunity to testify before the Federal Senate of Brazil regarding proposed legislation that would have created a sweeping formal plea bargaining system in the country.  
The American system of plea bargaining is so dominant today that one would be forgiven for imagining that this style of criminal procedure must have deep historical roots around the globe.  The truth, however, is that for most of history the common law has rejected plea bargaining as prohibitively coercive and an affront to the truth-seeking mission of the criminal justice system, an approach still taken in many common law countries today.Plea bargaining as it is known today in the United States is actually a relatively recent American invention that appeared first in a significant way around the time of the American civil war, later became a tool of corruption during the early twentieth century, and eventually gained widespread use and legitimacy as a response to the burdens of over-cri…

Professor Dervan's New Scholarship on the Supreme Court and Plea Bargaining

My new piece, entitled Class v. United States: Bargained Justice and a System of Efficiencies, is now available for free download on SSRN.  If you are interested in the state of plea bargaining research, including law and psychology research, and where the Supreme Court might go next, you'll enjoy this new article. 
The piece ends with these words: We know today, based on the research described above along with a steadily increasing number of real-world examples, that the incentives to plead guilty can be overpowering—indeed, so overpowering that even innocent defendants will sometimes take this path. When the Court addresses the fundamental question of defendant decisionmaking, it will have to wrestle with this reality and decide how best to proceed with the development of its plea-bargaining jurisprudence. Recall that in Brady, the Court said, “[W]e would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the like…

ABA Criminal Justice Section Announces Launch of Plea Bargaining Task Force

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The American Bar Association Criminal Justice Section Fall Institute occurred on November 2, 2018, in Washington, DC. It was a wonderful event that featured a host of interesting and timely panel sessions. I was honored for the opportunity to open the conference with an address examining the history of plea bargaining. During my remarks, I also announced the launch of a new ABA Criminal Justice Section Task Force. The Plea Bargaining Task Force will bring together a diverse group of individuals representing various institutions and perspectives in the criminal justice system to examine plea bargaining and provide recommendations regarding the best path forward. 
My remarks were followed by an address by Judge Jed Rakoff of the United States District Court for the Southern District of New York. In his address, Judge Rakoff discussed the many issues presented by the dominance of plea bargaining in our current system. His remarks were then followed by a panel discussion of plea bargaining…