Monday, September 24, 2012

WSJ Article Discusses Prof. Dervan's Research

The Wall Street Journal has an excellent feature article today about plea bargaining in the federal criminal justice system. 
In mid June, under a deal with federal prosecutors, Kenneth Kassab was on the verge of pleading guilty to illegally transporting thousands of pounds of explosives when he changed his mind. A week later, he was acquitted by a federal jury. 
Though Mr. Kassab maintained his innocence, he said in an interview that he had been prepared to plead guilty to avoid the risk of possibly decades in prison...

The entire WSJ article can be accessed here.

Along with the feature piece, the Wall Street Journal wrote a second insert article regarding the new plea bargaining study from myself and Professor Vanessa Edkins previously mentioned on this blog - see here.
Two university professors last year did an experiment to explore one of the more controversial questions of criminal law: How often do innocent defendants plead guilty to crimes to avoid the risk of greater punishment if they fight and lose?

The entire WSJ article regarding the plea bargaining study is here.  You can also access a draft copy of the research article, which will appear in the Journal of Criminal Law & Criminology early next year, here.

Sunday, September 23, 2012

Vote for Implementing Plea Bargaining Justly - Link Below

Each year HiiL, a research and development institute for the justice sector, holds the Innovating Justice Awards. According to their website, "The Innovating Justice Awards are designed to stimulate innovations in the justice sector. Rule of Law professionals can identify the most promising developments in the field. Innovators are motivated to improve and to apply their innovations across borders. Nominees and applicants will be able to share their setbacks, successes and best practices." This year, my innovative idea entitled "Implementing Plea Bargaining Justly" has been nominated for most innovative idea. The introductory paragraph of the innovation is reprinted below.
Plea bargaining has become a globalised phenomenon due to growing numbers of prosecutions and constrained judicial budgets. Each year, new countries explore the implementation of plea bargaining as a remedy for their burdened criminal justice systems. Unfortunately, plea bargaining is currently being implemented without adequate reflection regarding lessons learned from the past. The challenge is to collect such lessons learned and disseminate this information to legislatures and judiciaries for consideration as they address plea bargaining reform or undertake the initial implementation of plea bargaining. The idea described here is to gather lessons learned from various countries that have adopted or experimented with plea bargaining so others might benefit from their missteps and successes. This will be achieved in two ways. First, an online clearing house will collect stories of plea bargaining from all actors in the system, including judges, prosecutors, defendants and victims. This will allow for the cataloguing of a diverse group of narratives regarding the successes and failures of plea bargaining around the world. Second, actors in the plea bargaining system from various countries will be interviewed to learn more about particular plea bargaining systems. Once all of the information and lessons learned has been gathered, the results will become part of a best practices guide, which will be disseminated to legislatures and judiciaries around the world to assist in ensuring that the efficiencies of plea bargaining are gained by those systems in need without sacrificing societal responsibilities or individual rights and liberties.
To support the effort at plea bargaining reform, please click the below link and vote for this initiative.

Click here to view the Innovating Justice Awards website, to see the entire "Implementing Plea Bargaining Justly" entry, and to vote for "Implementing Plea Bargaining Justly."  Please also pass this link along to others interested in the pursuit of just plea bargaining systems around the world.

Tuesday, September 4, 2012

New Article on Plea Bargaining and Innocence to be Published in the Journal of Criminal Law & Criminology

Professor Dervan's new article, written with Prof. Vanessa Edkins and entitled The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, will be published in volume 103 of the Journal of Criminal Law & Criminology.
In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. This article discusses the study, which involved dozens of college students and took place over several months. The study revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.
Click here for a downloadable version of a draft of the article.

Plea Bargains and Appellate Waivers

Professor Berman's Sentencing Law and Policy Blog has a link to an article in the Denver Post discussing a federal judge's rejection of a plea agreement because it contained a waiver of appellate review.  Click here to see Professor Berman's post.  Click here to see the Denver Post article. 

The New York Times has also weighed in on the case.  In an editorial, the paper stated, "An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues."  The editorial went on to state that where appellate waivers are permitted, "Our system of pleas then looks more like a system of railroading."
Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.” In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court. The judge insisted the matter go forward to trial so that the United States Court of Appeals for the Tenth Circuit could review it: “Indiscriminate acceptance of appellate waivers,” he said, “undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.” The case is scheduled for trial next month in Denver. Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Click here for the entire NYT editorial and here for a response by the U.S. Attorney for the District of New Jersey.