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. 


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

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.  

Wednesday, July 18, 2018

Special Issue of Psychology, Public Policy and Law re Guilty Pleas

Psychology, Public Policy and Law has recently released a special issue on guilty pleas.  The collection of articles, edited by Miko Wilford and Allison Redlich, is an excellent read and examines plea bargaining from various perspectives.

My latest article entitled Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty is contained in the special issue.  This piece considers the impact of innocence, collateral consequences, and pretrial detention on plea decisions.  Full results from the study are contained in the article, but I'll note here one particularly troubling finding: the rate of innocent individuals who plead guilty tripled in our pretrial detention scenarios

Below are abstracts and links to each article in the collection. 

Special Issue of Psychology, Public Policy and Law: Guilty Pleas
Edited by Miko M. Wilford and Allison D. Redlich

Deciphering the Guilty Plea: Where Research Can Inform Policy
Miko M. Wilford and Allison D. Redlich


Introduces this special section of Psychology, Public Policy, and Law on the topic of guilty pleas. In this special section the editors have assembled six rigorous research and analytical papers that deepen the understanding of guilty pleas and introduce a number of important policy implications. Together, these studies examined the impact of multiple variables on the decision to plead guilty. 

The Influence of Confessions on Guilty Pleas and Plea Discounts
Allison D. Redlich, Shi Yan, Robert J. Norris, & Shawn Bushway


The influence on confession evidence in trials is quite strong; triers of fact who hear confession evidence find these self-incriminating statements hard to ignore and in turn, vote to convict more often. However, most cases do not see the inside of a courtroom, but rather are resolved via plea bargains. In the present study, we examined how confessions, whether partial or full, influence guilty plea rates and plea discounts (the difference between sentence received at trial if convicted and sentence received as part of the plea). We coded more than 500 district attorney case files for defendant statement type (i.e., not questioned by police, questioned but denied guilt, questioned and partially confessed, questioned and fully confessed), case disposition (guilty plea, trial, dismissal), and other pertinent information (e.g., initial charges, perceived strength of evidence). We found that whereas those who denied guilt were the least likely to plead guilty, when they did plead, they enjoyed the largest plea discounts. In addition, partial and full confessors were found to be equally likely to plead guilty (both at near-ceiling levels), but partial confessors received the smallest plea discounts by far. Our findings have implications for theories of remorse and punishment, and plea decision-making. 

Bluffed by the Dealer: Distinguishing False Pleas from False Confessions 
Miko M. Wilford & Gary L. Wells


The United States convicts over 1 million people of felonies each year without affording the resources of a trial. Instead, these convictions are attained by guilty plea. The current research investigated the similarities and differences that would emerge between pleas and confessions when relying on a paradigm originally developed for confession research. The study employed a modified cheating paradigm with a 2 (innocent or guilty) × 2 (plea or confession) × 2 (evidence-bluff or no-bluff) between-participants design. We hypothesized that the evidence-bluff manipulation, which involves telling participants that there is potentially diagnostic evidence that has yet to be tested, would increase false confessions (Perillo & Kassin, 2011), but decrease false guilty pleas. The bluff manipulation should strengthen the phenomenology of innocence, which will lead the innocent to believe their confession poses no threat, but that a guilty plea would eliminate their hope of being found innocent. Although the hypothesized interaction between the evidence-bluff and plea-confession conditions on acceptance outcomes did not materialize, other evidence emerged indicating that pleas and confessions might involve different underlying processes. Specifically, innocent participants gave different reasons for refusing to sign a plea statement than they did for refusing to sign a confession statement. Similarly, the plea and confession conditions prompted guilty participants to provide significantly different reasons for agreeing to sign the statement. In conclusion, the current research provides some support for the psychological differences between pleas and confessions, while also highlighting the need for new paradigms that are specifically designed to study plea decision making.

Attorney Perspectives on Juvenile and Adult Clients’ Competence to Plead Guilty
Amanda NeMoyer, Sharon Kelley, Heather Zelle, & Naomi E.S. Goldstein


An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney—believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

Too Young to Plead? Risk, Rationality, and Plea Bargaining’s Innocence Problem in Adolescents
Rebecca K. Helm, Valerie F. Reyna, Allison A. Franz, & Rachel Z. Novick


The overwhelming majority of both adult and adolescent convictions occur as the result of guilty pleas rather than trial. This means that convictions are often the result of decisions made by defendants rather than jurors. It is therefore important to study decision making in defendants to ensure convictions are occurring in a fair and principled way. Research suggests that the current plea-bargaining system is leading innocent defendants to systematically plead guilty to crimes that they did not commit, and that this may be more widespread in adolescents than adults. The current study uses fuzzy-trace theory to develop and test an explanation of why adolescents are more likely than adults to plead guilty to crimes they did not commit. The authors show that, as predicted, adolescents are more likely than adults to plead guilty when they are innocent, and that this is due to developmental differences in the use of gist representations in decision making whereby values are unlikely to be retrieved and applied when making decisions. These results have implications for postconviction claims of innocence by adolescents, procedural rules governing adolescent plea bargaining, and the practice of adolescent plea bargaining more generally. 

How Defense Attorneys Consult with Juvenile Clients about Plea Bargains
Erika N. Fountain & Jennifer L. Woolard


Despite recent research attention, a lack of information still plagues the most common conviction process in the United States: the plea bargain. Further, even less is known about how juvenile defendants make plea bargain decisions. Juvenile plea bargaining is unique due to juveniles being considered independent minors while simultaneously being held to adult competency standards in court. Unfortunately, juvenile defendants are less likely than adults to have the necessary capacities for adjudicative competence. Given defense attorneys’ role in the plea bargain process, it is possible that they may be able to increase their clients’ knowledge and legal understanding. Additionally, defense attorneys may be able to facilitate meaningful client participation and better decision making. The current study takes an exploratory, qualitative approach to examine how defense attorneys prepare juveniles to make informed and autonomous plea bargain decisions in juvenile court. Data from interviews with juvenile defense attorneys suggest that juveniles are subjected to a quick decision-making process and tend to base their decisions on immediate gratification. Attorneys reported using one of three specific consultation strategies with their young clients. Ultimately, plea bargain discussions were described as occurring quickly, focused on the immediate case facts and outcomes, with less time and attention reserved for discussions about rights, or long-term, collateral consequences.

Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty
Vanessa A. Edkins & Lucian E. Dervan


With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether or not informing individuals of collateral consequences would alter their decisions to plead. Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences—especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention—would not have the desired effect of exerting a strong influence on decisions to plead. Across two studies—the first, an exploratory within-subjects design; the second, a more controlled between-subjects design—we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved. We also saw that, in general, participants were not opposed to the imposition of most collateral consequences. Future directions for plea bargaining research are discussed.