Sunday, April 1, 2012

Professor Dervan Testifies Before Congress

On Wednesday, March 28, 2012, I testified before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.  A portion of my testimony regarding plea bargaining is below. 
In closing, I would like to address one additional issue. While creating additional overlapping federal criminal statutes and significantly increasing the statutory maximum penalties for offenses related to prescription drug offenses may not result in greater deterrence of potential offenders or significantly increase sentences for those convicted, such legislation will perpetuate the phenomenon of overcriminalization and with it the continued deterioration of our constitutionally protected right to trial by jury.

Today, almost 97% of criminal cases in the federal system are resolved through a plea of guilty. As the number, breadth, and sentencing severity of federal criminal statutes continue to increase through overcriminalization, prosecutors gain increased ability to create overwhelming incentives for defendants to waive their constitutional right to a trial by jury and plead guilty. As my research has shown, a symbiotic relationship exists between overcriminalization and plea bargaining. This relationship has lead us to our current state and created an environment in which we have jeopardized the accuracy of our criminal justice system in favor of speed and convenience. In my most recent article, written in collaboration with Dr. Vanessa Edkins (Assistant Professor, Department of Psychology, Florida Institute of Technology), we discovered that more than half of innocent defendants will falsely admit guilt in return for a perceived benefit. As overcriminalization continues to create the incentives that make plea bargaining so prevalent and powerful, we must ask ourselves as a country what constitutional price is being paid when, even though we act with good and noble intentions, we create yet another law or increase yet another statutory maximum where is it not absolutely necessity to achieve our goals.
Click here for the Judiciary Committee website regarding the hearing. 

Click here for my full testimony, including several articles that were attached.

Click here for the video of my testimony.

Supreme Court Hands Down Two Plea Bargaining Cases

As detailed by the SCOTUSblog, the Supreme Court recently handed down two important decisions regarding plea bargaining in the cases of Missouri v. Frye and Lafler v. Cooper.
In Missouri v. Frye and Lafler v. Cooper, the Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice. Writing for a five-four majority in each case, Justice Anthony M. Kennedy reasoned that the right to counsel extends to the plea-bargaining process because of the “simple reality” that plea bargaining is so pervasive in our system such that the negotiation of a plea “is almost always the critical point for a defendant.”

Justice Antonin Scalia, who pointedly read a summary of his dissenting opinions in both cases from the bench, called the decisions “inconsistent with the Sixth Amendment and decades of our precedent.” The four dissenting Justices also criticized the majority for failing to define the parameters of the governing legal standards, which they predicted will result in many years of litigation in the “newly created constitutional field of plea-bargaining law.”
Read the entire SCOTUSblog entry here.
I found the below portion of the decision in Frye particularly interesting.
The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours "is for the most part a system of pleas, not a system of trials," Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. "To a large extent . . . 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." Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) ("[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, be- cause the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial" (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
(Some Internal Citations Omitted). It will be interesting to see how far this logic extends, particularly given the significant attention currently being given to grand jury reform.

To read the entire opinions, click on the decisions here - Frye and Lafler.