Thursday, June 15, 2017

New Report from Fair Trials on Plea Bargaining Around the World

A new report from Fair Trials is a must read for those interested in plea bargaining issues.  Fair Trials is an organization working globally to "improve respect for the fundamental human right to a fair trial."

From the description of the report on the Fair Trials website:
The trial is the archetype of criminal justice. It has captured the public imagination. Just think of the dominance of court-room drama in film, TV and literature: the intense personal drama of the trial for the defendant, whose life hangs in the balance. The public drama of the trial: after the shadowlands of police custody, the evidence and the actions of police and prosecutors are exposed to the bright light of scrutiny. The public sees the rule of law in action, witnesses real-time, the search for truth and justice.

But the trial is starting to disappear. In many parts of the world, trials are being replaced by legal regimes that encourage suspects to admit guilt and waive their right to a full trial. Of the 90 countries studied by Fair Trials and Freshfields, 66 now have these kinds of formal “trial waiver” systems in place. In 1990, the number was just 19. Once introduced, trial waivers can quickly dominate. In Georgia, for example, 12.7% of cases were resolved through its plea bargaining system in 2005, quadrupling to 87.8% of cases by 2012.

The drama of the contested trial is being overtaken by “deals” struck behind closed doors. The personal drama, of course, is no less intense. As a defendant, you have a single life-changing decision to make. Confronted with the overwhelming power of the state and often in detention, your options probably don’t look particularly appealing: plead guilty and get convicted, albeit with a shorter sentence; or gamble on your chances in court where, if convicted, you’ll be sentenced more harshly.


When “incentives” to plead guilty become too extreme, they can persuade innocent people to admit crimes they did not commit. “I’d never plead guilty to something I didn’t do” – you may think this, but going to trial is a gamble and the stakes can be exceedingly high: defendants may plead guilty to avoid the threat of the death penalty or life without parole. In federal drug cases, mandatory minimums have contributed to a system in the US where defendants convicted of drug offences received sentences on average 11 years longer by going to trial rather than pleading. To provide more context for this statistic in the United States, 65 out of the 149 people exonerated of crimes in 2015 had pleaded guilty (44%).
The entire Fair Trials report can be downloaded here.

If you'd like to read more about the likelihood an innocent defendant might falsely plead guilty to a crime, download a free copy of my article The Innocent Defendant's Dilemma here.

Wednesday, May 3, 2017

Second Global White Collar Crime Institute - Sao Paulo, Brazil

In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China.  It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field. 

I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe.  The program is now available online, and it is shaping up to be another spectacular event. 

The program includes the following panels:

·      A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
·      Navigating Cross Border Government Investigations and Prosecutions
·      Trends Regarding Global Anti-Corruption Enforcement
·      A View of Global White Collar Crime from the Bench
·      Preparing for the Globalization of Corporate Internal Investigations
·      Navigating Global Compliance Trends and global Enforcement Priorities

I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments.  Register here while space is still available. 

Tuesday, February 14, 2017

ABA CJS Hong Kong Conference - Global Investigations and Compliance

As many readers know, I am heavily involved in planning international white collar crime conferences with the American Bar Association Criminal Justice Section.  These have become wonderful learning and networking opportunities for those with an interest in the many issues in the field that transcend national boundaries. 

I’m excited to announce the next international conference offering will occur on April 5, 2017 in Hong Kong.  The event will focus on Global Investigations and Compliance:  From Regulatory Trends to Leveraging Innovation and Technology.  I expect this conference to be a wonderful compliment to the successful Global White Collar Crime Institute the American Bar Association held in Shanghai in 2015.  If you attended the Shanghai event, I hope you will join us again and reconnect with the many colleagues and contacts you established at that earlier conference.  If you were not in attendance in Shanghai, I hope you will join us in Hong Kong and be introduced to the growing network of international professionals making these American Bar Association white collar conferences an important part of their network. 

Seating is limited for this event, and I hope you will register today to reserve your spot (click here to register).  I look forward to seeing many of you in April. 

Official ABA Event Description

PwC Hong Kong and the American Bar Association are hosting a full day seminar with four robust panel discussions followed by a networking reception.  The panel sessions will focus on a number of pertinent topics, such as exploring regulatory updates, international investigations, navigating cross-jurisdictional issues in Southeast Asia, and the future of blockchain technology in compliance programs.  The content for these panels will be delivered by leading experts, including prominent attorneys in the US and Asia, US regulators, consulting professionals, corporate executives, professors, and others.  The target attendees for this event are international and Hong Kong/China based legal and corporate professionals focused on white collar crime and compliance.

Topics include:
· Regulatory Update: Recent Trends in Enforcement
· Current State of International Investigations
· Navigating Cross-Jurisdictional Issues in the South Asian Market
· Block-chain Technology: What does it mean for the Future of 
Compliance Programs?

More information here.

Tuesday, December 27, 2016

US to Assist Jamaica with Introduction of Bargained Justice

According to the Jamaica Observer, the U.S. State Department has agreed to assist Jamaica in introducing bargained justice into its criminal justice system.  From the article:
The justice minister said that changes are to be made to the Criminal Justice (Plea Negotiations and Agreement) Act in order to make the legislation more effective and to speed up the pace at which justice is delivered to Jamaicans.
The Act, which was introduced in 2006 and amended in 2010, allows individuals accused of crimes to plead guilty and give testimony or information in return for a reduced penalty.
Minister Chuck explained that the amendments will, among other things, allow for the defence counsel to be a part of the plea bargaining process and to negotiate with the prosecutor and judge regarding the sentence to be imposed.
“If the accused knows that following a trial he can receive a sentence of 10 or 15 years, and he also knows that his defence counsel can bargain with the judge and get five years instead of 10 years, there is a real likelihood that he may accept the plea,” Minister Chuck explained.
“If there is an agreement, the matter can be dealt with right away. Always in this plea bargaining process, it will be under the jurisdiction of the judge, who must have the final say,” he noted further.
Minister Chuck said that plea bargaining is not intended to “soften” the justice system, noting that sentencing guidelines will be in place to ensure that justice is served.
Interestingly, the article indicates that Jamaican Minister of Justice, Delroy Chuck, explained that the "principle of plea bargaining was a time-honoured common law tradition...."  As readers of this blog will know, my 2012 article entitled Bargained Justice (available for free download here) traces the history of plea bargaining and reveals it is a relatively modern American phenomenon dating back mainly to the early 20th century and rising to dominance in the second half of the 20th century.  As many countries begin to adopt plea bargaining (See e.g. Japan - discussed here), I hope some of the important lessons we have learned about the psychology of plea bargaining will be considered as new laws and rules of criminal procedure are drafted in these various jurisdictions (For example, see The Innocent Defendant's Dilemma (available for free download here)). 

Tuesday, November 29, 2016

New York Times Article on the Vanishing Trial by Jury

The New York Times published an article earlier this year entitled Trial by Jury, a Hallowed American Right, Is Vanishing. It is well worth a read. The piece examines the rarity of trials at the federal level and includes observations from some of the country's most prominent judges.

From the opening of the article:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone.
Click here for the entire article.