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. 

NACDL Releases Report on the Trial Penalty

The NACDL released an important report last week detailing the impact of the trial penalty, which is the difference between the sentence a defendant receives in return for pleading guilty and the often much larger sentence he or she receives in return for exercising his or her constitutional right to trial. 

From the NACDL press release:
The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The
 Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
You can access the entire report here.

Monday, January 22, 2018

Two Recent Notable Commentaries on Plea Bargaining

In recent days, two notable pieces have appeared in major U.S. newspapers discussing plea bargaining's innocence problem. 

The first appeared in The Washington Post, entitled "How to make an innocent client plead guilty." The piece, written by Jeffrey D. Stein, a public defender in Washington, D.C., discusses the power of plea bargaining, especially when the defendant is subjected to pretrial detention.

The conversation almost always begins in jail. Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made. Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week. And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release.

After detailing the process that leads some innocent defendants to plead guilty, the piece ends with a stark and critical reminder of the role attorneys play in our current system of bargained justice. 

The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” 

Read the entire Washington Post piece here

The second notable piece in recent days then appeared in The New York Times, entitled "Innocent but Still Guilty." Written by Megan Rose, a reporter for ProPublica, the piece discusses the use of Alford pleas in cases where evidence of innocence throws into doubt a prior conviction. 

After Fred Steese spent two decades in a Nevada prison for murder, evidence indicating that he was innocent was found buried in the prosecution’s files. It was proof that Mr. Steese, as he’d always claimed, had been hundreds of miles away on the likely day of the murder and couldn’t have been the killer.

In Maryland two years earlier, the conviction of James Thompson, who had also served 20 years for murder and rape and whose case involved police and prosecutorial misconduct, was thrown into overwhelming doubt when his DNA didn’t match the semen found in the victim.

In neither case did prosecutors jump to set the prisoner free. Instead they vowed to retry the men unless they agreed to a plea bargain called an Alford plea, in which the defendant enters a guilty plea while also asserting his innocence for the record. The deal allows the inmate to leave prison right away. But he remains convicted of the crime, forever a felon. 

The piece goes on to question the appropriateness of using an Alford plea where the evidence is no longer sufficient to support a conviction beyond a reasonable doubt. 

Prosecutors I’ve spoken to contend they seek Alford pleas because they are convinced the inmates are guilty. Often they say that the plea is the best way to ensure a guilty man remains convicted because effectively prosecuting a new trial may be too difficult for a variety of reasons, including that evidence had been destroyed or simply too much time had passed. The subtext is that the prosecutors may no longer be able prove guilt beyond a reasonable doubt.

Read the entire New York Times piece here

I previously discussed the issue of Alford pleas being used in innocence cases in my 2012 article, "Bargained Justice: Plea-Bargaining's Innocence Problem and the Brady Safety-Valve" (available for free download here). 

In the same year the Supreme Court decided Brady, it also handed down another plea-bargaining decision that helped to solidify bargained justice as a major facet of the American criminal justice system. In North Carolina v. Alford, the Court stated that a defendant could plead guilty in return for some benefit, such as a reduced sentence, while continuing to maintain his or her innocence. The Court inserted a caveat, however, requiring the “record before the judge contain[] strong evidence of actual guilt” to ensure the rights of the innocent are protected and guilty pleas are the result of “free and intelligent choice.”

I then went on to discuss the case of Kerry Max Cook, who, despite evidence of innocence, was forced to accept an Alford plea in return for his freedom. 

[Cook] was arrested for the rape and murder of a woman in Tyler, Texas. Though Cook was convicted by a jury and sentenced to death a year later, he continued to profess his innocence. During his time on death row, Cook was abused, raped, and attempted to commit suicide twice. After one suicide attempt, prison officials found a note that stated, “I really was an innocent man.” His initial conviction was eventually overturned and a second trial in 1992 resulted in a hung jury. The government retried Cook again, and the death penalty was imposed by a jury a second time. In 1996, Cook’s conviction was again overturned, this time due to police and prosecutorial misconduct dating back to the initial investigation and trial of Cook in 1978. Despite the numerous setbacks, the government moved forward to retry Cook a fourth time. Due to the prior misconduct, however, the prosecutor in the case would no longer be able to use the testimony of a central witness in the case. As the trial for Cook’s life approached, the prosecution conceded that the case was looking increasingly weak. 

Having discussed the evolution of the plea-bargaining machine it will come as no surprise that the prosecutor responded to the significant likelihood of losing a trial by offering Cook a plea deal. In return for pleading guilty, Cook would receive a sentence of time served and walk out of prison. Cook refused, however, continuing to profess his innocence.

"Kerry [Max Cook] looked [his attorney] in the eye and said, “I want to be free, I want this behind me, but I will go back to death row, I will let them strap me to the gurney and put the poison in my veins before I lie, before I plead guilty." 

In response, the prosecutor offered Cook the same deal in return for an Alford plea. Cook could now plead guilty, while, at the same time, continuing to maintain his innocence. Cook took the plea agreement and, twenty-two years after being placed in prison, walked free. Two months later, a DNA test conclusively demonstrated that Cook was not a match to forensic evidence obtained at the scene of the crime in 1977. Though he had been induced to plead guilty, Cook was, in fact, innocent. 

I recommend both of the recent opinion pieces for your weekly reading list.

Monday, November 20, 2017

The Economist Magazine Discusses Prof. Dervan's Plea Bargaining Research

This week's The Economist magazine contains an article entitled "A deal you can't refuse: The troubling spread of plea-bargaining from America to the world."  The piece, referenced on the magazine's cover as "The perils of plea bargains," details the growth of plea bargaining around the world over the last two decades.  A recent study of the issue by Fair Trials International revealed that in 1990 just 19 countries used some form of plea bargaining.  That number is now 66.

In examining the issue of the global spread of plea bargaining, The Economist looked at the history of plea bargaining in the United States and its growth in the shadows of the American criminal justice system in the early twentieth century.  This issue is discussed in detail in my article entitled "Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve," available here for free download. 

The Economist article also discusses my research regarding the issue of innocence.  The piece states:
Researchers are starting to demonstrate how common false confessions are likely to be. In a study in 2013 by Lucian Dervan of the Belmont University College of Law, together with Vanessa Edkins, a psychologist at the Florida Institute of Technology, students were asked to solve logic problems, first in a team and then alone. An accomplice of the researchers asked half the participants for help on the second set. All were then accused of cheating and offered a “plea bargain” to avoid penalties that could include losing the payment for participation and having their supervisors notified. Nearly 90% of those who had aided the accomplice confessed. But so did a majority of those who were innocent.

Mr Dervan is now running studies in Japan, which is introducing plea-bargaining, and South Korea, which may do so. Japan, where criminal suspects may be held for 23 days without charge, often with only minimal contact with a lawyer, perhaps deprived of sleep, is already worryingly good at extracting confessions. Plea bargains are being brought in as part of the horse-trading over a larger criminal-justice reform, in which prosecutors opposed to routine recording of interrogations have managed to limit it, in exchange for formal recognition of plea-bargaining and other aids to investigating complex crimes.

Early results suggest that the “innocence issue” is universal, says Mr Dervan. Differences in legal systems do not change the rate of false confessions much. Another study he is conducting suggests that guilty participants are no more likely to plead guilty if offered a big incentive rather than a small one. Innocent ones, however, become more likely to make false confessions as the incentive—in other words the penalty for rejecting the deal—rises.

All this suggests that defendants should carefully weigh the long-term consequences of a guilty plea. But it seems they do not—even when explicitly nudged to do so. In a separate study, Mr Dervan found that informing participants about those consequences made little difference to the likelihood that they would accept a deal. “If pleading guilty means you get to go home, most will plead guilty,” he says. When the justice system is stacked against defendants, they are unlikely to gamble their futures for its greater good.
Some of the research referenced in the article can be downloaded for free here, including my article entitled "The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem."  This is the piece regarding the psychological deception study discussed in The Economist.

It's wonderful to see increased discussion of the important role of plea bargaining both in the United States and internationally.  As the Supreme Court noted in 2012, ours is a system of pleas, not a system of trials.  It appears the same can now be said of many criminal justice systems around the world.