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.

Tuesday, December 8, 2015

Professor Dervan Lectures Regarding Plea Bargaining in Japan

Earlier this year, Japan's House of Councillors passed a Bill Relating to Criminal Justice Reform. Japan's House of Representatives was scheduled to take up the bill during the same session of the Diet, but controversy ensued. The controversy centered around the bill's creation of a formal plea bargaining system in Japan. Given how long we have been relying on bargained justice in the United States, it might seem as though the entire world is dealing in bargains. In many countries, however, including Japan (at least for the moment), plea bargaining is prohibited.  

In the wake of the controversy, I was honored to be invited to Tokyo, Japan to deliver a lecture to the Japan Federation of Bar Associations. My lecture focused on both the history of plea bargaining in the United States and ways Japan can learn from this history in beginning down the path of bargained justice. The lecture will shortly be published in Japanese. For readers of this blog, I post below the English version of the lecture.

It will be fascinating to watch as Japan wrestles with the issue of whether to pass the proposed law. If the law is passed, it will be equally interesting to watch as plea bargaining evolves from its infancy in Japan.  Will it come to dominate their system as it has in the United States? Only time will tell. 

Bargained Justice:
Plea Bargaining and Innocence in the United States

Lucian E. Dervan
Associate Professor and Director of Faculty Development
Southern Illinois University School of Law

November 2015

Tokyo, Japan

Thank you to the Japan Federation of Bar Associations and Dr. Makoto Ibusuki for inviting me to join you today.  It is an honor to share my work with you and consider the future of plea bargaining in Japan. 

In 2012, United States Supreme Court Justice Anthony Kennedy wrote, “Criminal justice today is for the most part a system of pleas, not a system of trials.”  The data supports this assertion.  Today, over 97% of federal criminal convictions in the United States are the result of a plea of guilty, and the state systems are not far behind.

There are four primary types of pleas of guilt in the United States.  The first is an open plea, in which a defendant pleads guilty in return for no specific promise from the prosecution, but in the hopes of leniency from the court at sentencing because of a willingness to confess and accept responsibility for his or her actions.  The second is a charge bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to drop particular charges, especially charges that carry mandatory minimum sentences.  The third is a sentence bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to recommend, or, at least, to not oppose, a particular sentence in the case.  In each of the above pleas, the court retains the discretion to make the final sentencing decision, though the courts encourage plea bargaining by following the recommended or agreed upon disposition in the vast majority of cases.  The final type of plea in the United States addresses the issue of judicial discretion at sentencing and is called a binding plea.  In the binding plea setting, the prosecution and defense determine the sentence that will result from the plea of guilt and, if the court accepts the agreement, the court is bound to impose only that sentence.  These types of pleas are less frequent than others, because many courts reject these types of agreements as impermissibly intruding into the sentencing powers of the judiciary. 

In Japan, by comparison, there is no formal plea bargaining system.  However, under laws proposed in the Japanese Diet this year, something resembling charge bargaining and sentencing bargaining may be permitted in white collar criminal investigations in the future.  The cases and issues I will discuss today relate directly to this type of plea bargaining and, therefore, I believe there is much to learn from the American experience as Japan begins down the road of bargained justice.

To begin our examination of plea bargaining and its history in the United States, allow me to tell you three stories of bargained justice.  The first is about a defendant who did not take the deal and the shocking punishment he received as a result.  The second is about a defendant who took the deal and the significant benefits he received in return.  The third is about a defendant who, despite her innocence, had no choice but to plead guilty because of the power of the system’s incentives.  I believe these three stories serve as excellent introductions to our consideration of the risks and rewards of creating a criminal justice system that relies on plea bargaining.

In late October of this year, Governor Rick Scott of Florida denied a petition for the commutation of the sentence of Orville (Lee) Wollard.  Wollard, a former human resources specialist at a large corporation in Orlando, is currently serving a 20 year prison sentence for firing a warning shot into the wall next to his daughter’s boyfriend.  The warning shot came at the end of a day in 2008 during which the boyfriend allegedly attacked Wollard, assaulted his daughter, and then refused to leave Wollard’s home.  When Wollard finally brandished his legally owned firearm, the boyfriend punched a hole in the wall, smiled, and began advancing.  Wollard finally fired a warning shot into the wall, and the boyfriend left.

Wollard was later arrested for the incident and spent a year in jail awaiting trial.  Believing his actions justifiable self-defense, Wollard rejected a plea bargain from the government that would have resulted in a sentence of only five years of probation.  Instead, Wollard decided to exercise his constitutional right to trial and present his case to a jury.  Unfortunately for Wollard, the court did not permit him to admit extensive evidence regarding the alleged abuse suffered by his daughter and family at the hands of the boyfriend.  Rather, the court merely permitted the defense to introduce evidence that the man was “no longer welcome” in the home.  After hearing the limited evidence in the case, the jury convicted Wollard of aggravated assault with a firearm, which in this case carried a mandatory minimum sentence of 20 years in prison.

There are many tragic aspects to this story.  Of particular relevance to my research is the shocking difference between the sentence offered with the plea bargain and the sentence faced after conviction at trial.  Some call this difference the trial penalty, and it is a phenomenon faced by defendants throughout the American criminal justice system when deciding how to proceed.  Of course, the vast majority of defendants never receive the tougher sentence associated with trial because they cave under the pressure.  As I mentioned a moment ago, over 97% of federal convictions in the United States are the result of a plea of guilty.  One federal judge in New York described the sentences defendants face if they reject plea offers and proceed to trial as “so excessively severe, they take your breath away.” 

Last month, a white collar defendant in Florida faced a decision regarding how to proceed in a case with yet another staggering trial penalty.  Michael Szafranski was an investment advisor in Florida who served as a “verifier” for $200 million worth of transactions related to the $1.2 billion Ponzi scheme lead by former attorney Scott Rothstein.  Rothstein had previously pleaded guilty in the case and cooperated with authorities in offering evidence against other members of the scheme.  In 2015, Szafranski was indicted on eleven counts of wire fraud and one count of conspiracy.  If convicted at trial on all counts, he faced a maximum sentence of 225 years in prison.  Prosecutors, however, offered him a deal.  If Szafranski pleaded guilty and cooperated with authorities, he would receive only thirty months in prison.  Facing a trial penalty of potentially hundreds of years, Szafranski did what anyone else would do and pleaded guilty. 

These first two stories present us with both the good and bad sides of plea bargaining.  By offering defendant’s incentives to plead guilty, the government is able to secure a conviction, while preserving valuable and scarce resources by avoiding a long and costly trial.  In cases involving multiple defendants and complex frauds, such as the Rothstein Ponzi case, plea bargaining also offers the government the ability to convince defendants to cooperate and provide evidence against others.  For defendants, particularly ones against whom there is significant evidence, plea bargaining provides a means for securing a definitive result and, potentially, a significantly reduced sentence in return relinquishing their constitutional right to trial, accepting responsibility for their actions, and cooperating with authorities.  These are the rewards acquired by prosecutors and defendants by allowing the plea bargaining system to thrive.

But there are also costs associated with bargained justice.  For defendants like Lee Wollard and Michael Szafranski, the plea bargaining system makes it extremely costly to exercise their constitutional right to trial.  Should defendants’ sentences be increased by years, decades, centuries if they reject plea offers and proceed to trial?  In considering this question, we must remember that both factually guilty and factually innocent defendants enter the criminal justice system every day.  The role of the system is to determine who is properly within its grasps and who should be found innocent and released.  But plea bargaining interferes with this fundamental process because the incentives to plead guilty are often so great that even the innocent will falsely confess if it is the rational course forward. 

For the final of the three stories, consider the fate of Erma Faye Stewart.  In 2000, Stewart, a thirty year old single mother of four, was arrested in Hearne, Texas.  At the time, Stewart lived in a public housing project.  The arrest was part of a large drug sweep based on information provided by a confidential informant.  In total, twenty-five men and two women were implicated in the narcotics scheme and each was placed in jail with a $70,000 bond.  The government quickly offered Stewart a plea bargain.  If she pleaded guilty, she would be released immediately, be placed on probation for ten years, and be fined $1,800.  If she refused, she would be held until trial, which could take months, and faced a possible sentence if convicted of five to ninety-nine years in prison.  Stewart’s attorney told her to take the deal.  With no money to bond out of jail prior to trial and no one available to watch her four children, Stewart had little choice.  Though she continued to maintain her innocence, she falsely confessed to the court and pleaded guilty.  An hour later she was released.  Stewart was not the only one to plead guilty in the case.  Of the twenty-seven people arrested, seven pleaded guilty to the charges.  When the remaining cases proceeded to trial in 2001, the government’s case quickly collapsed.  The informant had lied to prosecutors and the evidence he provided was worthless.  All those on trial were released.  For Stewart, however, the case was not over.  The prosecution refused to withdraw her guilty plea.  As a result of her narcotics conviction, she became ineligible for food stamps and educational loans and was evicted from her apartment.  Homeless, Stewart was forced to sleep outside, while her children slept in the homes of various friends each night.  While the cost of proceeding to trial was too much for Stewart, the cost of falsely pleading guilty was devastating as well. 

How did we arrive in this place?  How did bargained justice come to represent the criminal justice system in the United States?  Many assume that plea bargaining has always been a fundamental part of criminal justice in America.  The truth, however, is that until the second half of the twentieth century, plea bargaining was considered an impermissibly coercive institution by the courts.  The story of how plea bargaining rose from obscurity to dominance is a cautionary tale about the power of the plea bargaining machine and how quickly it can rise to dominance. 

Continue Reading the Lecture after the Jump

Monday, December 7, 2015

Washington Post Article Regarding Recent Efforts at Criminal Justice Reform

The Washington Post has an excellent article tracking the evolution of the reform efforts announced by Eric Holder at the American Bar Association annual meeting in August 2013.  The entire article is available here.


Thursday, December 3, 2015

Prof. Dervan's New WSJ Opinion Piece - Plea Bargaining and the Trial Penalty

I'm pleased to let my readers know that tomorrow morning's Wall Street Journal will include an opinion piece I wrote regarding plea bargaining and the trial penalty.  The article is entitled "The Injustice of the Plea-Bargaining System."  

Below is the introductory paragraph. 
The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system. With incarceration rates in the U.S. five- to 10-times higher than Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes. Yet none directly addresses plea-bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty.
The entire piece is available here