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. 

Tuesday, October 24, 2017

Commentary and Research re Race and Plea Bargaining

The Marshall Project has a new commentary piece online regarding race and plea bargaining.  The piece, entitled "When Race Tips the Scales in Plea Bargaining" begins with this story.
TWO OFFICERS ESCORTED a young black man into the courtroom, bringing him in handcuffs from a holding cell in the back called “the pen.” They placed him beside his public defender and stepped away. So far, things were routine. The prosecutor had offered the man a plea deal of probation and he indicated that he would accept. In a scene that plays out dozens of times a day in the Bronx criminal court, the judge ran through a constitutionally required script. This article was published in collaboration with Slate.She explained what it means to accept a prosecutor’s plea offer: that he was giving up his right to a trial; he was admitting guilt; he could not change his mind. The judge asked, as she must: “Is anyone forcing you to accept this plea today?” At this point, most people quietly say "no." But the man responded “yes,” he was being forced to accept the plea. Refusing to accept meant facing the strong arm of prosecution and potentially going to prison for years. He protested that he had no real choice.Three court officers surrounded him. The judge repeated the question: “Is anyone forcing you to accept this plea today?” This time, flanked by officers, he said no. A few minutes later, he walked out a free man, but he now had a criminal conviction and the oversight and constraints that come with probation.
The commentary goes on to discuss, among other things, a study by Carlos Berdejo of Loyola Law School that "demonstrates for the first time that there are significant racial disparities in the plea deals that white and black people receive on misdemeanor charges."  Professor Berdejo's piece is available for download here.  Below is the abstract.
Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints – the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion. This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction. 

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony. Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all. 

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating racial disparities. While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors. These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

Thursday, September 7, 2017

The Weaponization of Plea Bargain Offers - Mayor Kelly

An interesting opinion piece regarding plea bargaining appeared on recently. The article, authored by the Mayor of the City of Bridgeton, NJ, discusses plea bargaining and innocence.  The piece begins:
In a previous column, I expressed appreciation for the work done on bail reform in New Jersey. My support for the switch to a largely non-monetary bail system comes from what I have seen of the impact on people's lives. No longer do people have to sit in jail only because they don't have the money for cash bail. Bail reform is a good foundational step, but is reform is needed in other areas.

One such area is plea bargains. I honestly never gave plea agreements much thought until an acquaintance shared an article from The Atlantic's September edition, "Innocence is Irrelevant" by Emily Yoffe.
You can read the rest of the opinion piece by Mayor Albert B. Kelly here.  

Atlantic Article on Plea Bargaining and Innocence

The Atlantic has published an article regarding plea bargaining and innocence entitled Innocence is Irrelevant.   The piece, which centers on my hometown of Nashville, discusses the case of Shanta Sweatt. In considering how criminal justice operates today, the piece states: 
This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’”
You can read the entire article here.