Thursday, August 22, 2019

Professor Dervan Testifies Before the Federal Senate of Brazil

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-criminalization around the time of American Prohibition. 

While plea bargaining began as an American invention, it is now being exported around the globe.  Japan, for example, began allowing plea bargaining for the first time in the summer of 2018.  In Brazil, which has had very limited plea bargaining in the past, legislation was recently introduced to create a sweeping plea bargaining system.  I had the privilege of being asked to review the proposed legislation and offer the Federal Senate of Brazil some thoughts regarding both the benefits and risks associated with the adoption of the legislation, along with some recommendations for ways to minimize the risks posed by introducing a broad bargaining procedure into their criminal justice system.  I hope to have the opportunity to work with the Brazilian legislature further to ensure that any plea bargaining legislation that is adopted leads to a balanced, efficient, and reliable plea bargaining process.

You can watch my testimony, which occurred via video, below.  You can also read the transcript of my full remarks to the Senate at the end of this blog post. 



HEARING
Before the
FEDERAL SENATE OF BRAZIL
COMMISSION OF CONSTITUTION AND JUSTICE

Testimony of Professor Lucian E. Dervan
Belmont University College of Law

August 6, 2019

           Thank you President Tebet, Senator Costa, and the members of the Commission of Constitution and Justice for inviting me to speak with you today regarding your pending plea bargaining legislation.

            I have had the opportunity to review the proposed language of Article 395-A, and appreciate the opportunity to offer some thoughts regarding both the benefits and risks associated with plea bargaining, along with some recommendations for ways to minimize the risks posed by introducing a broad bargaining procedure into your criminal justice system. 

            Plea bargaining is a powerful and dominant tool in the modern American criminal justice system.  In the American federal system, for example, around 97 percent of all convictions each year come not from a trial but from a plea of guilty.  According to the government, about 75% of these pleas of guilt are the result of an offer of leniency in return for the plea or a threat of further punishment if the defendant goes to trial and loses.

            It is important to note, despite its current central role, that plea bargaining has not always dominated the American system, nor does plea bargaining have a long common law history.  Rather, for most of history the common law has rejected plea bargaining as impermissibly coercive and an affront to the truth-seeking mission of the criminal justice system, an approach still taken in many common law countries today.  Even in the United States, early courts examining the use of bargains considered them inappropriate, with the Wisconsin State Supreme Court saying in 1877 that plea bargaining was “hardly, if at all, distinguishable in principle from a direct sale of justice.”

Plea bargaining as it is known today in America is, as this quote from Wisconsin indicates, actually a relatively recent invention that appeared first in a significant way around the time of the American Civil War in the latter half of the nineteenth century, 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-criminalization beginning in the era of American Prohibition.

While time does not allow me to delve more deeply into the historical roots of American plea bargaining today, I would refer members to my 2012 article entitled Bargained Justice in the Utah Law Review for a more detailed discussion.  I mention this history briefly here to make clear that plea bargaining is a modern phenomenon that grew from the shadows to dominate the American criminal justice system without significant oversight or regulation.  I applaud, therefore, your efforts to carefully consider what a plea bargaining system might look like as you debate whether to formally adopt such procedures in Brazil.

            Despite the strong common law rejection of the concept, as described a moment ago, plea bargaining did grow in the shadows to dominate the American criminal justice system, and this should not be surprising given the strong incentives and benefits that potentially emanate from its use for both the prosecution, the defense, and the court system.
           
At its simplest, plea bargaining is a contract for mutual benefits.  The government can save the time and expense of trial, along with obtaining the certainty of a conviction - something particularly important if the evidence in the case is weak.  The government can also use a generous plea offer to create an incentive for a defendant to cooperate and provide evidence against another person or in furtherance of an important public safety matter or law enforcement investigation.  Finally, plea bargaining can offer a formal mechanism for encouraging and rewarding acceptance of responsibility.

Importantly, the defendant may also gain significant benefits from such an agreement.  The defendant, for example, can avoid the significant financial, personal, and emotional costs of a trial.  The defendant can also often reap the benefit of a lower sentence, sometimes significantly lower, in return for pleading guilty.  Similarly, a defendant being held in pretrial detention may be able to secure their release through a plea bargain.  Finally, the defendant can capture some certainty regarding the results of the case by pleading guilty, something we know from psychological research is important to people, particularly those who are risk averse.

Plea bargaining, therefore, can be an efficient and mutually beneficial process for moving cases swiftly and cleanly through the criminal justice system and also a mechanism for gaining greater cooperation from defendants in building cases against others.

In addition to these types of benefits, however, we must also recognize the dangers inherent in a system that offers significant incentives for admissions of guilt and be cognizant of the effect efficiency might have on reliability.  These risks went mostly unnoticed as plea bargaining came to dominate the American criminal justice system in the 1900s and the result has led to much debate today about how we can improve the American system that is now so entrenched – a debate that has recently led to the creation of the American Bar Association Criminal Justice Section’s Plea Bargaining Task Force, a group which I am chairing. 

You have a great opportunity to learn from what has occurred in the American system and use that information to carefully consider how you might proceed with plea bargaining here.  So, with the remainder of my time, let me talk a little about plea bargaining’s innocence problem. 

It is now indisputable in the American criminal justice system that innocent people have pleaded guilty to offenses they have not committed and, in some such cases, have also provided false testimony against others to secure the bargain. 

In 2012, my colleague, Dr. Vanessa Edkins, and I, sought to add further clarity to this phenomenon by exploring the psychological aspects of false pleas and seeking to better understand just how willing an individual might be to falsely confess in the plea bargaining context. 

To do this, we created a psychological deception study that placed students in a position where they were accused of cheating and then offered a deal.  Though everyone in the study was accused of cheating, only about half of the students actually cheated, something we knew definitely because, unbeknownst to the participants, we had placed a confederate in the room with them.

All the students, regardless of factual guilt or innocence were then offered the opportunity to either plead guilty in return for a light punishment or proceed to trial and risk a greater punishment if they lost.  Greater details about the study and the paradigm constructs are available in our 2013 article entitled The Innocent Defendant’s Dilemma in The Journal of Criminal Law and Criminology.

Important to our discussion today is the fact that both guilty and innocent participants accepted the plea deal and admitted committing the academic misconduct.  Specifically, 89% of the students who had, in fact, cheated took the offer.  With regard to the students who had not cheated, 56% were willing to falsely confess to something they had not done in return for the benefits of the bargain.   

This groundbreaking study has now been successfully replicated numerous times by other labs around the world using our paradigm for validation.

The false pleas phenomenon also arose as an issue of significant concern in a recent collateral consequences study that I conducted with Professor Edkins.  In the study, we asked participants to examine several hypothetical situations and decide whether to accept a plea offer.  In some of the hypotheticals, participants were told to assume they were guilty of the charged offense.  In other hypotheticals, they were informed of their innocence.  Similarly, some hypotheticals involved pre-trial detention and others did not. 

Consistent with our earlier research, we found that participants in both the guilty and innocent conditions accepted the plea offer, thus demonstrating once again the problem of false pleas in return for incentives.  In addition, we observed that innocent participants were significantly more likely to plead guilty when detained pretrial, with the numbers of false pleas more than doubling when the individual in the hypothetical was in pretrial detention.

            Our studies and the many others that are emanating from them demonstrate that there are deep psychological forces at work when defendants are faced with a plea offer and that these decision-making processes can lead innocent individuals to falsely plead guilty.  As this chamber considers how to proceed with the current legislation, I hope you will carefully weigh these risks, because current research indicates this is not exclusively an American phenomenon. 

As I noted at the beginning of my testimony, plea bargaining is an American invention that rose to dominate our system in the 1900s.  But, as this hearing demonstrates, the use of plea bargaining around the world is growing rapidly.

            Given this global growth, Dr. Edkins and I, along with Professor Andrew Pardieck, decided to investigate the issue of false pleas and the reliability of plea bargaining globally by recently launching an updated and revised version of our cheating paradigm study simultaneously in the United States, Japan, and South Korea.

While the data is still preliminary and non-final, we can already see that plea bargaining’s innocence problem is global and should be an issue of concern in all countries, cultures, and legal systems adopting a plea bargaining system.  Let me share just a few preliminary results with you so that you might consider the implications of this information as you determine your next steps. 

In the new study, participants in the United States, Japan, and South Korea were once again placed in a situation in which cheating with a fellow student occurred roughly 50% of the time.  Regardless of guilt, all of the students were once again accused of cheating and offered the opportunity to plead guilty in return for a more lenient punishment or proceed to trial.  One important change in this study is that during part of the research we required the students pleading guilty to not only admit to their own conduct, but to provide information about the cheating and about who instigated the cheating.  The students in this version of the study were also required to agree to provide information, if necessary, about the cheating and about the role of the other student during a trial of that other student.  We did this to mirror similar requirements contained in Japan’s new plea bargaining laws. 

Our initial findings should give us further pause regarding the risks associated with the plea process.  First, once again we are finding that both guilty and innocent participants are willing to plead guilty.  This is occurring in all three jurisdictions, though, as would be expected, plea rates for innocent participants are lower than plea rates for guilty participants.  Importantly, we are also finding a significant number of innocent participants willing to not only falsely implicate themselves through a false plea, but also willing to falsely implicate others in return for the bargain.  Data on this point is still preliminary and only available in two of the three jurisdictions, but, as an example, the U.S. study is currently showing around half of the innocent participants who falsely plead guilty also being willing to falsely implicate the other student as the instigator of the cheating.

This new research reminds us that the phenomenon of false pleas holds the potential not only to capture factually innocent individuals responding to the benefits plea bargaining offers, but also holds the possibility of corrupting the larger truth-seeking mission of the criminal justice system by creating incentives for individuals to provide false information to investigators or to provide false testimony against others.
   
As I noted in the beginning of my testimony, the plea bargaining system holds great opportunity, but, as my research illustrates, also great risk.  Let me finish then by offering a few thoughts about the potential path forward should Brazil choose to formalize plea bargaining through this legislation.  There are a number of avenues that might be taken in conjunction with this legislation to mitigate the risks I have identified today.  Let me mention just a few to begin a conversation about this important aspect of creating a balanced, efficient, and reliable plea bargaining system.
  
First, consideration should be given to the impact of pre-trial detention on false plea rates and whether reforms are necessary in the pre-trial detention process to account for this risk. 

Second, the role of counsel is vital in ensuring defendants understand plea bargaining procedures and engage in the plea decision-making process in a careful, informed, and deliberate manner.  This includes ensuring that defense counsel has properly investigated the case before making a recommendation to the client.  To achieve these goals, consideration should be given to mechanisms to provide well-funded counsel to defendants early in the process. 

Third, consideration should be given to procedures for ensuring that relevant evidence, especially information known to the prosecution that tends to negate the guilt of the accused or mitigate the offense charged or sentence, is made available to defendants before a decision is made regarding whether to accept a plea deal.

 Fourth, consideration should be given to some limitation on the type and size of incentives that may be offered in return for pleading guilty to reduce the chances an innocent defendant might decide the cost of proceeding to trial is too high despite his or her innocence.  The current legislation includes some limitations, and consideration should be given to whether more guidance is necessary, including consideration of how charging decisions are made and whether mechanisms exist to prevent charging decisions being used to make less effective the limitations on sentencing reductions contained in the current legislation.

Fifth, consideration should be given to the role of the judiciary in the plea bargaining process and how the role of the judiciary can be used to mitigate, rather than exacerbate, some of the concerns discussed today.  This might include requiring the judiciary to examine whether there is additional corroborating evidence in the case beyond simply the defendant’s admission of guilt before accepting a plea of guilty.   

Sixth, consideration should be given to the role of waivers in a plea system, including which waivers may appropriately be requested of a defendant in return for a plea bargaining.  An example of a waiver widely believed to be inappropriate in the United States, for example, is the waiver of ineffective assistance of counsel as part of a plea bargain.

Seventh, consideration should be given to how transparency and accountability might be encouraged when implementing a new plea bargaining system.  These could include requirements such as requiring plea offers to be in writing and requiring that plea offers be disclosed to the court. 

Eight, consideration should be given to developing example practices for prosecutors to ensure that any new plea bargaining system is implemented in a manner that is uniform and that reflects the benefits and risks discussed here today.

Finally, consideration should be given to the creation of a process to collect data on the plea bargaining process, including the size of the incentives offered to defendants and the plea rate that results, from the very beginning of any system.  The collection of such data is incredibly important to both monitoring and understanding the functioning of any type of plea bargaining system that may be adopted.

I thank you for the opportunity to provide my thoughts on this important issue, and I would be happy to further assist the government of Brazil in the future as it considers the adoption of this legislation and, should it be adopted, during the process of implementing this new law.  I would also be happy to take any questions you may have for me today.

Thursday, December 6, 2018

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 likelihood that defendants, advised by competent counsel, would falsely condemn themselves.” Yet, that is exactly where we find ourselves almost 50 years later, waiting on the Court both to recognize and to address that fact in light of all that we now know.

Does this portend that the Court might one day reverse course and decide that its 1970 approval of what has since become a veritable plea-bargaining machine was a mistake? I think not. Even if some of the justices desired this path, the Supreme Court of today stands in an even worse position than the Court of 1970 to stop plea bargaining’s triumph. Plea bargaining has become a fully accepted part of our criminal justice system and, because of that acceptance, our system has grown even more reliant on bargained justice for its continued functioning. But completely prohibiting plea bargaining is likely an unnecessary step, and indeed a step too far, if our focus is plea bargaining’s innocence problem. That concern is best addressed, I believe, through more focused efforts to fill in the various gaps that were created over the many years during which plea bargaining evolved and expanded in the shadows without much consideration of its operation or ramifications. Given that all but three to five percent of convictions each year in America come from guilty pleas, the Court must provide defendants greater rights before, during, and after the plea-bargaining process. Examples might include meaningful grand jury reform; better access to information, including exculpatory information, before pleading guilty; and reasonable limitations on the size of sentencing differentials sometimes used to punish those who exercise their constitutional right to trial. Fortunately, this is the type of work the Court has been focused on in the plea-bargaining context for a number of years as it has worked to provide defendants greater rights. We must now encourage the continuation of this journey so that the Court might expand on its previous work and reach these and other new and important topics.

Finally, before concluding, one must also observe that embracing the realities of plea bargaining’s innocence issue raises another fundamental question the Court must address in this long journey to create modern plea-bargaining law. If, even knowing the alarming power of plea bargaining to ensnare the innocent, we continue forward, are we not conceding that beyond being merely a system of pleas, today’s criminal justice system is, for the most part, actually a system of efficiencies? As a recent article regarding plea bargaining observed, “Though there are several reasons underlying the rise in plea bargains, the primary reason—efficiency—remains true today and is the most-often-cited reason for maintaining the practice.” What does it means to concede that the criminal justice system today is more about efficiency and less about justice than our Founders might ever have envisioned? What does it mean that in a system that values individual liberty, we have marginalized the right to a jury trial because of our inability to operate an overcriminalized system without bargained justice? While I do not know how those questions will be answered, I do think they are the concerns to which a deep examination of plea bargaining must eventually lead us—and the Court.

Click here to download a free copy of the entire piece. 

Abstract

Class v. United States: Bargained Justice and s System of Efficiencies
Cato Supreme Court Review (2018)

In 2018, the United States Supreme Court ruled in Class v. United States that a defendant does not inherently waive his or her right to appeal constitutional claims simply by entering an unconditional plea of guilty. Rather, the Court determined such waivers must be express. While the issue decided in Class was relatively straightforward, the case stands more importantly as another pillar in the growing body of modern plea-bargaining jurisprudence. In particular, Class is of note because the facts of the case and the discussions surrounding the appeal raise fundamental questions regarding the operation of the plea-bargaining machine, the psychology of defendant decision-making, and the voluntariness of plea bargaining given our growing understanding of the phenomenon of factually innocent defendants falsely pleading guilty. This article begins with an examination of Class, including the incentives that led the defendant to plead guilty despite his belief that the statute of conviction infringed his constitutional rights. The article then examines the shadowy rise of plea bargaining during the 19th and 20th centuries and the recent focus on plea bargaining by the Supreme Court since its 2010 decision in Padilla v. Kentucky. This analysis of recent plea-bargaining case law will illustrate that fundamental issues are beginning to rise to the surface regarding defendant decision-making and voluntariness in the plea context, including the reliability of admissions of guilt in return for plea bargains and the phenomenon of false pleas. The article, therefore, next examines recent psychological research on these topics, including research demonstrating that factually innocent individuals will falsely confess in return for the benefits of a bargain and research finding that pretrial detention is a driver of false pleas. Finally, the piece considers the ramifications of growing evidence that plea bargaining has a voluntariness and reliability problem. Along with considering ways to address these concerns, the article proposes that these revelations will inevitably lead us to face a broader question. What does it mean if we have adopted a criminal justice system that embraces efficiency at the expense of accuracy?



Monday, November 12, 2018

ABA Criminal Justice Section Announces Launch of Plea Bargaining Task Force

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, which included Judge Rakoff, Professor Russell Covey (Georgia State University College of Law), Rebecca Shaeffer (Fair Trials), and District Attorney Sherry Boston (Dekalb County, Georgia). It was an engaging session that reminded us of the significant role of plea bargaining today and the need for continued work examining the impact of this institution on the criminal justice process. 


Below are some of my introductory remarks from the event.
We start this morning with remarks and a panel discussion on the incredibly important issue of plea bargaining.  As you no doubt know, almost 98% of federal convictions and 95% of state convictions come not from a trial, but from pleas of guilt.  In roughly 75% of those cases, a guilty plea comes in return for an offer of leniency or in response to a threat of punishment. 

Though we have grown incredibly comfortable with plea bargaining in today’s system, it is important to recognize that bargained justice is a relatively new invention and does not hold deep common law roots. 

In fact, appellate courts who first began to see what we would now call plea bargaining begin to rise shortly after the American Civil War struck down the practice as impermissibly coercive. 

Nevertheless, plea bargaining continued to grow into what is has become today, and much of that growth occurred in the shadows of the system – outside the eyes, regulation, and insights of any branch of government. 

In recent years, more and more attention has begun to focus on plea bargaining as we have worked to better understand the functioning of the system and the decision processes of those within it. 

And this new focus has led to a much deeper understanding of both the benefits and dangers of the system we have created. 

For example, in 1970, when the Supreme Court finally approved of plea bargaining in the Brady decision, the court indicated that it had little concern about an innocence problem.  The Court believed that innocent people simply don’t plead guilty, they go to trial.

A few years ago, I sought to test this idea and conducted a psychological deception study that falsely accused students of cheating and then offered them the ability to plead guilty in return for a more lenient punishment.  In response, 56% were willing to falsely confess to something they knew definitely they had not done. 

This study led to a torrent of new psychological research into plea bargaining that has now created a deep and growing body of literature offering new insights into the operation of the plea bargaining machine and those within it.

With all that we have learned in recent years, it seemed the time was right to bring together the stake-holders in the criminal justice system to examine plea bargaining in a way it never was during its shadowy rise, and to ask whether we could make the system better… fairer… more just… and less dominated simply by a desire for efficiency. 

To that end, I’m pleased to announce today the creation of the ABA Criminal Justice Section Plea Bargaining Task Force, which will examine plea bargaining and consider how we might best move forward. 

Given this new work by the Section, it also seemed fitting to start our Annual Fall Institute with leaders in the field to offer us their thoughts on this timely subject.
‪At the end of a wonderful weekend in Washington, DC leading the ABA Criminal Justice Section Fall Institute and Council meeting, I was honored to be invited to the Embassy of Japan to meet with leaders from the Supreme Prosecutor’s Office and various regional prosecutor offices to discuss Japan’s new prosecutorial agreement law and share my research on plea bargaining. Our discussion focused on the many lessons we have learned regarding plea bargaining in the United States. I was also able to share with the group our current law and psychology research into plea bargaining and innocence in Japan and South Korea. My message to the group was that plea bargaining's innocence issue is a global phenomenon. My sincerest thanks to the government of Japan and those present at the meeting for the opportunity to discuss this important issue. I hope there are more opportunities to discuss the best path forward for Japan as it begins to implement the prosecutorial agreement law.



Thursday, October 25, 2018

ABA Criminal Justice Section Fall Institute - Including a Plea Panel and Remarks on Plea Bargaining by Judge Jed Rakoff


I hope you will join me in DC next week for the ABA Criminal Justice Section Fall Institute.  Due to the generosity of our sponsors, all CLE programming is complimentary and participants may register on-site.  

The Institute begins with a spectacular White Collar Crime Town Hall on Thursday, November 1 from 3:30pm-5:00pm at the Mayflower Hotel in Washington, D.C.  Below is a description of the Town Hall and the exceptional panelists who will discuss The Role of the Media in White Collar Criminal Investigations and the Mueller Probe.

The panelists will first examine the role of the media in these investigations generally, including the obligations/interests of the media in protecting the integrity of investigations, the tools available to prosecutors and defense attorneys to address media coverage during the investigative stage, and the tools and standards for fair trial protections due to pretrial media exposure. Then, the panel will delve into the Mueller probe specifically, addressing the media’s sources of information about the Mueller investigation, what the leaked information reveals about the investigation, the media’s impact on the Manafort trial, the Congressional role in providing investigative information to the public, and implications on other ongoing aspects of the investigation.

Moderator: Henry Asbill, BuckleySandler LLP, Washington, DC

Rebecca Ballhaus, Reporter, Wall Street Journal, DC Bureau, Washington, DC
Kevin Hall, Pulitzer Prize Winner, Chief Economics Correspondent and Sr. Investigative Reporter, McClatchy Newspapers
Michael Isikoff, Chief Investigative Correspondent, Yahoo News
Prof. Jessica Roth, Cardozo Law School, Reporter, ABA CJS Standards on Fair Trial and Public Discourse

There will then be a welcome reception immediately following the white collar town hall.

The complimentary CLE programming continues at the Mayflower Hotel on Friday, November 2, with a morning keynote address on plea bargaining by Judge Jed Rakoff.  This will be followed by a host of fascinating panel discussions focusing on the work of the Section and its committees.  These will include:

A Fresh Look at Plea Bargaining in our Criminal Justice System
Prosecutors as Agents of Change
GITMO Twelve Years Later
Re-Entry and Innovation
What Civilians Can Learn from the Military Experience with Sexual Assault & Harassment
Enhancing Justice: Reducing Bias – Strategies for Change in the Criminal Justice System

On Friday, we will also hold our prestigious Criminal Justice Section Awards Luncheon and Address, which occurs at 12:30pm.  The Address will be given by Hilarie Bass, immediate past President of the American Bar Association.  Ms. Bass will discuss her work creating a new organization to address issues critical to women and minorities.  These important remarks are incredibly timely given the recent launch by the Criminal Justice Section of the new Women in Criminal Justice Task Force. 

Our Friday programming will conclude that evening with our Criminal Justice Section fall reception. 

More information about the panels and other events occurring during the Fall Institute, including committee meetings, the academics workshop, and the law student career fair, can be found on the Fall Institute website.

All CLE programming, including the White Collar Town Hall, is complimentary and participants may register on-site.  Those wishing to attend the Awards Luncheon and Address should register online.  The cost of the luncheon is $50.  For those registering online, please note that website issues have resulted in improper pricing information being listed.  The correct price should populate when you move to the checkout.  If you have any difficulty registering online, please contact Regina.Ashmon@americanbar.org

Tuesday, August 14, 2018

Troubling Virginia Case Allows "Legal Fiction Plea"

On July 20, 2018, a court in Fairfax County, Virginia, approved of a "legal fiction plea."  The decision, from the Nineteenth Judicial Circuit of Virginia, begins with the following explanation of the issue and its holding:
The issue before this Court is whether a criminal defendant may knowingly plead guilty to a crime that he factually did not commit, and whether the Court can convict him based on such a plea.  This Court refers to such pleas as "legal fiction pleas," and holds that a defendant may enter such a plea as part of a plea agreement to avoid a potential conviction of a more serious crime or imposition of a worse sentence.  As long as a defendant fully understands that he could not otherwise be convicted of the lesser crime and asserts that he is entering the plea nonetheless for his own perceived benefit, courts should accept such pleas. 
It is worth noting that, according to the court, Virginia generally does not require "the introduction of evidence to sustain a conviction based upon a plea of guilty."  Later in its opinion, the court offers these additional thoughts. 
Can a defendant plead guilty to a crime that he factually could not have committed with his eyes wide open to take advantage of a favorable disposition?  This Court concludes that a defendant may plead guilty to a crime he never committed under these circumstances. ... This conclusion is unsurprising when one considers a similar, counterintuitive form of a guilty plea - the Alford plea.  
I recommend reading the entire opinion - available here.  

This case contains many troubling elements, such as the fact that Virginia allows guilty pleas without any evidence to sustain the conviction and that this court is now willing to even accept a guilty plea to an offense it knows the defendant did not commit.  As a general matter, I think this case is another example of how distant the modern plea bargaining system is from what was envisioned by the Supreme Court in the 1970 Brady case.  I would also argue that the Court’s analogy to Alford here is inconsistent with that case's holding, especially when it’s examined in the historical context of the Court’s plea decisions at the time.  I discuss both of these issues in my piece on the history of plea bargaining in the United States - The Brady Safety Valve (available for free download here).  I also think the court’s opinion here raises further concerns about plea bargaining’s innocence problem (discussed in my piece entitled The Innocent Defendant’s Dilemma - available for free download here), particularly as legal fiction pleas relate to the creation of sentencing differentials and questions of voluntariness.