Friday, May 27, 2016

Examining Wrongful Convictions - A Good Summer Read

If you're looking for some summer reading on the latest research in the field of wrongful convictions, take a look at the book entitled Examining Wrongful Convictions by Allison Redlich, James Acker, Robert Norris, and Catherine Bonventre.  The book contains chapters by various experts in the field covering topics in three sections.  The first section examines "Disciplinary Perspectives on Criminal Justice and Wrongful Conviction," the second section deals with "The Criminal Justice System: Producing, Detecting, and Remedying Wrongful Convictions," and the final section examines "Moving Forward: Advancing the Study of Wrongful Conviction."  For those interested in the topic, it is an authoritative, detailed, and excellent read. 

From the book's website:
In Examining Wrongful Convictions: Stepping Back, Moving Forward, the premise is that much can be learned by “stepping back” from the focus on the direct causes of wrongful convictions and examining criminal justice systems, and the sociopolitical environments in which they operate. Expert scholars examine the underlying individual, systemic, and social or structural conditions that may help precipitate and sustain wrongful convictions, thereby “moving forward” the related scholarship.
Available from Carolina Academic Press here.

Friday, March 18, 2016

Virginia Newspaper Finds Racial Disparities in Plea Outcomes

The Daily Press in southeastern Virginia released an article yesterday detailing its review of court records related to plea deals in the Hampton Roads circuit courts. According to the article, the newspaper found racial disparities in the outcomes of cases. In particular, the article states that the data examined indicates that, for some of the most commonly charged offenses, white defendants were more likely to receive a deal that did not include jail time as compared to African-American defendants.

A few examples of the data discussed in the article:

"Whites were able to negotiate plea bargains on charges of drug possession that resulted in no actual jail time in 65 percent of cases, compared to 56 percent for African-Americans."
"In plea deals on charges of distributing drugs, whites received no time in jail in 48 percent of their plea agreements, compared to 22 percent for African-Americans. All but a handful of these cases involved people who had been before the courts on other recent charges. All of that handful, of both races, negotiated plea deals that involved no jail time."
"For grand larceny — stealing goods worth more than $200, among the lowest thresholds for felony theft in the nation — 55 percent of whites negotiating plea deals received no jail time compared to 48 percent of African-Americans."

You can read the entire Daily Press article and the complete findings of the review here. The newspaper also has some very interesting charts containing the data they reviewed, available here.

Tuesday, March 15, 2016

Voices on Innocence

Readers might be interested in a new article I have just posted to SSRN entitled "Voices on Innocence."  The piece, written with several colleagues from around the country, contains a number of essays on the topic.  In my introduction to the work, I discuss my plea bargaining research and the importance of the innocence issue to the field.  

The abstract for the article is below.  The piece, which will appear in the Florida Law Review later this year, is available for free download here.


Voices on Innocence, 68 Florida Law Review -- (forthcoming) (with Richard A. Leo, Meghan J. Ryan, Valena E. Beety, Gregory M. Gilchrist, and William W. Berry III). 

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future.

This article is a collection of short essays from some of those in attendance - essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence. Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred in the summer of 2015. As was the case at the roundtable event, the ideas expressed in these pages begins a journey into an issue with many faces and many paths forward for discussion, research, and reform.

Thursday, January 21, 2016

Another Opinion Piece Regarding Plea Bargaining

Tim Lynch of the CATO Institute has authored a thought-provoking piece about plea bargaining for The Washington Post.  The article, entitled Americans Are Bargaining Away Their Innocence, explores the presumption of innocence and the manner in which this tenet is impacted by the plea bargaining machine.
The presumption of innocence helps to combat prejudice and prejudging in the U.S. criminal justice system. But because plea bargains have supplanted trials in our criminal justice system, that presumption does not apply to most cases in the United States.
Read the entire opinion piece here.

Thursday, December 17, 2015

New York Court of Appeals Opinion Discusses the Trial Penalty

A recent opinion from the New York Court of Appeals contains a very interesting discussion of the trial penalty.  In the case, People v. Martinez, Slip Opinion 08456 (NY Court of Appeals, Nov. 19, 2015), the defendant rejected a plea offer of 10 years probation.  After his conviction at trial, he was sentenced to 10 to 20 years in prison.  The defendant then appealed, arguing the trial sentence was "vindictive."  While the majority upheld the sentence, the dissent argued that the trial judge should be required to explain such a sentencing differential on the record to ensure the defendant is not being punished for exercising a constitutional right.  Excerpts from the majority and dissenting opinions are below.

From the majority opinion:
Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is retried, convicted, and given a greater sentence than that imposed after the initial conviction. . .

"[C]riminal defendants should not be penalized for exercising their right to appeal" (Young , 94 NY2d at 176). After a new trial, the sentencing court must give affirmative reasons "concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" to justify a higher sentence (Van Pelt , 76 NY2d at 159 [quoting North Carolina v Pearce , 395 US 711, 715-716 [1969]).

In Van Pelt , the defendant successfully appealed his trial conviction and a different judge imposed a higher sentence after the defendant was convicted upon retrial. This Court held that the enhanced sentence "offend[ed] State constitutional due process protections" because the judge offered no change in circumstances "occurring subsequent to the first sentencing, sufficient to overcome the presumption of institutional 'vindictiveness'" (76 NY2d at 158).

In Miller , the defendant's original lenient sentence, which was vacated after a successful appeal from his conviction after a guilty plea, was negotiated in exchange for sparing the victim from testifying — a "legitimate and reasoned basis" for granting leniency, and a benefit the defendant relinquished when he proceeded to trial after his appeal (see 65 NY2d at 508-509).

By contrast, the same policy concerns are not implicated when a defendant rejects a plea offer, proceeds to trial for the first time, and is given a harsher sentence than the plea offer. "Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea" (People v Pena , 50 NY2d 400, 412 [1980][internal citations omitted]). In Pena, this Court concluded that the defendant was not punished by the imposition of the lawful, but greater, sentence received after rejecting a lenient plea offer and proceeding to trial.
From the dissenting opinion:
In my view, an appearance of judicial vindictiveness arises when a trial judge is aware of an unsuccessful plea discussion and, after trial, the same judge sentences the defendant to a jail term that is significantly harsher from that offered in the plea. Regardless of how one feels about the plea offer or the ultimate sentence after trial, an explanation of the disparity is required. Without it, a conclusion that defendant is being punished for exercising his or her right to a trial is ineluctable and reflects badly on the court. Therefore, I dissent.

. . .

It goes without saying that plea bargaining is part of our criminal justice system (Bordenkircher v Hayes , 434 US 357 [1978]). And we have said that during the bargaining process, the State may encourage a guilty plea by offering certain benefits, such as reduced exposure to the potential maximum sentence otherwise available, notwithstanding the fact that this has the effect of discouraging a defendant's assertion of his right to a trial (see People v Pena , 50 NY2d 400 [1980]). It follows that the fact that a sentence imposed after trial is greater than that offered during a plea negotiation is no clear indication that the defendant is being punished for asserting his right to proceed to trial. "Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea" (Pena , 50 NY2d at 412). However, it is equally true that if a defendant refuses to plead guilty and goes to trial, retaliation or vindictiveness may play no role in sentencing following a conviction (see Corbitt v New Jersey , 439 US 212 [1978]). The conventional concerns in sentencing, which include the considerations of deterrence, rehabilitation, retribution, and isolation, must be the factors weighed when sentence is imposed (see People v Suitte , 90 AD2d 80 [2d Dept 1982]).

The "presumption of vindictiveness" of a sentence arose out of the United States Supreme Court case North Carolina v Pearce (395 US 711 [1969]). There the defendant, Pearce, was convicted in a North Carolina court of assault with intent to rape and sentenced to serve 12 to 15 years in prison; in a companion case, the defendant, Rice, pleaded guilty to four charges of burglary and was sentenced in an Alabama court to serve a total of 10 years. After having served several years, Pearce was granted a new trial because a confession used against him was held to have been obtained in violation of his constitutional right not to be compelled to be a witness against himself; Rice's conviction was set aside because, although he was indigent, he had not been provided with a court-appointed lawyer at the time he made his guilty plea. Both were retried and again convicted. Rice's sentence was increased to 25 years, and no credit was given for time he had previously served; Pearce was sentenced to eight years which, when added to the time he had already served, amounted to a longer sentence than originally imposed. Because in neither case did the record contain any justification for the increased sentence, the United States Supreme Court reversed the sentences as being unconstitutionally vindictive.

This Court adopted the Pearce presumption in cases where a defendant is successful on appeal and after a retrial receives a much greater sentence than his original one (see People v Van Pelt , 76 NY2d 156 [1990]). The majority chooses to use the distinction between a retrial following a successful appeal and a mere offer followed by a trial to distinguish this case. But to me, this makes no sense. The issue is vindictiveness, not procedural routes.

New York appellate courts have routinely reduced sentences in cases in which the disparity between the plea offer and the imposed sentence was great. For example, in People v Brown (70 AD2d 505, 505-506 [1st Dept 1970]), the court reduced a sentence where there was a disparity between the plea offer of 5 to 10 years and imposed sentence of 8 to 24 years. The court found the sentence "create[d] the appearance that the defendant was being punished for proceeding to verdict, rather than receiving merely the sentence which his crime and record justified" (id .). In People v Cosme , (203 AD2d 375 [2d Dept 1994]), the court reduced a sentence to 15 years to life because of the disparity between plea offer of 8 years to life and imposed sentenced of 25 years to life. While those courts may have done so through their interest of justice jurisdiction, I suggest that this Court's authority - as a matter of law - can, has and should be used to require an explanation in cases such as the one before us.

The difference between the sentences in this case is glaring. A court cannot claim to be surprised by testimony in a rape case that has been pending before it since the time of its indictment. There is no showing in this record that the sexual assault, serious as it was, merited a choice between letting the alleged perpetrator walk the streets following a sentence of probation or twenty years in jail. An explanation, hopefully a reasonable one, is necessary. Had the court indicated the basis for the increased sentence, this court may have considered this information sufficient to render the sentence "non-vindictive." With a 10-20 fold increase in sentence, the sentencing court should "at a minimum state on the record the additional facts which emerged .. .. that changed the court's viewpoint on sentencing, and how those matters factored into the court's decision" (Longley v State , 902 So 2d 925 [Dist Ct. Florida, 2005]).

For these reasons, I would reverse the imposition of the sentence and remit the matter to the trial court for resentencing, this time with an explanation for the disparity, if any.
The entire case is available here.