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

Monday, November 30, 2015

Britain Approves First Deferred Prosecution Agreement

According to Reuters, a judge approved Britain's first Deferred Prosecution Agreement today.  The below is from the Serious Fraud Office's (SFO) press release.  
The Serious Fraud Office's first application for a Deferred Prosecution Agreement was today approved by Lord Justice Leveson at Southwark Crown Court, sitting at the Royal Courts of Justice.

The counterparty to the DPA, Standard Bank Plc (now  known as ICBC Standard Bank Plc) ("Standard Bank"), was the subject of an indictment alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. This indictment, pursuant to DPA proceedings, was immediately suspended. This was also the first use of section 7 of the Bribery Act 2010 by any prosecutor.

As a result of the DPA, Standard Bank will pay financial orders of US$25.2 million and will be required to pay the Government of Tanzania a further US$7 million in compensation. The bank has also agreed to pay the SFO's reasonable costs of £330,000 in relation to the investigation and subsequent resolution of the DPA.

In addition to the financial penalty that has been imposed, Standard Bank has agreed to continue to cooperate fully with the SFO and to be subject to an independent review of its existing anti-bribery and corruption controls, policies and procedures regarding compliance with the Bribery Act 2010 and other applicable anti-corruption laws. It is required to implement recommendations of the independent reviewer (Price Waterhouse Coopers LLP).
DPAs are a new settlement vehicle in the U.K., as discussed in my article International White Collar Crime and Deferred Prosecution Agreements.  One should expect that now the first DPA has been approved, U.K. enforcement bodies will begin aggressively using DPAs in the coming years.  As the Director of the SFO, David Green, said of the Standard Bank DPA, "This landmark DPA will serve as a template for future agreements."

The press release and links to the Standard Bank DPA are available on the SFO website

Tuesday, October 27, 2015

Ponzi Scheme Adviser Receives Significant Benefits from Plea Bargain

Law360 is reporting that a Florida investment adviser who served as a "verifier" for $200 million worth of transactions related to the Scott Rothstein $1.2 billion Ponzi scheme has been sentenced to 30 months in prison.  Given the original charges in the case and the significant loss figures associated with his actions, the investment adviser, Michael Szafranski, faced a possible sentence of 20 plus years in prison if he had proceeded to trial and lost.  The fact that the government was willing and able to offer him a plea deal that resulted in only 30 months in prison indicates once again the immense leverage available to the government to structure favorable bargains, particularly in white collar cases.  

Szafranski was originally charged with 11 counts of wire fraud and one count of conspiracy.  Each wire fraud count carried a potential 20 year sentence and the conspiracy count carried a potential 5 year sentence.  Therefore, the maximum sentence available if the terms ran consecutively was 225 years in prison.  While such a sentence was unlikely, particularly as Rothstein himself received 50 years in prison after pleading guilty, Szafranski faced the real possibility of being sentenced to 20 years in prison (the statutory maximum for wire fraud) given the applicable Federal Sentencing Guidelines.  

Under the 2014 Sentencing Guidelines, the case would have included at least the below factors:

7 base points
+ 26 points for a loss exceeding $100 million+ 6 points for more than 250 victims                                           
= 39 points (resulting in a sentencing range of 262-327 months)

While there are likely additional applicable Guideline points available in the case, it is sufficient to stop our analysis after just considering these three.  With an offense level of 39, even a first time offender would face a sentencing range of 262-327 months in prison.  As the statutory maximum for wire fraud is 240 months (20 years), a sentence in this range would not be unusual in such a situation.

With a potential sentencing differential of almost 17 years in prison between the plea bargain and trial, one must wonder whether anyone would risk proceeding to trial in a case like this one.  I’m certainly not arguing that Szafranski is innocent of the charges in this case or that he is not deserving of a significant prison sentence for his involvement in this devastating fraud.  But I do think the case raises interesting questions about the size of sentencing differentials and incentives to plead guilty more generally.  Such sentencing differences are not limited to this case or even white collar cases.  They are prevalent throughout the entire U.S. criminal justice system.  

Tuesday, September 29, 2015

New York Times Article re Plea Bargaining and Over-Incarceration

The New York Times has an interesting opinion piece today from David Brooks regarding "The Prison Problem."  The article focuses on over-incarceration and examines what might be driving this phenomenon outside of the usual suspects, such as the "war on drugs" and mandatory minimum sentences.  The piece argues that while the "war on drugs" and mandatory minimums certainly played their roles, there is also much to be said for the impact of changes in prosecutorial behavior over time.  In discussing the role of prosecutors, Brooks mentions the role of plea bargaining.
District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.
Brook's piece is well worth a read.  I look forward to a future opinion piece from Brooks looking more closely at the role of plea bargaining in the U.S. criminal justice system.

Brook's piece also references a recent documentary on Angola prison, entitled "Angola for Life."  It's an interesting documentary that explores an infamous prison that has gone through many transformations over the years.


Wednesday, September 23, 2015

Congress and Overcriminalization

I was honored to serve as the moderator of a recent discussion on Capital Hill regarding overcriminalization.  The discussion occurred on September 16, 2015 and was entitled "Striking the Right Balance: Criminal v. Civil Law Sanctions."  The program description is below:
How should our federal government strike the right balance between the use of criminal law sanctions instead of civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted? 
The event began with an opening address by Norman Reimer, Executive Director of the NACDL.  That was followed by a panel discussion, which included myself as moderator, Adeel Bashir (Appellate Division, Office of the Federal Defender, M.D.Fla.), John Lauro (Lauro Law Firm), and Marjorie Peerce (Ballard Spahr).  It was a wonderful event, and I encourage you to watch the below video of the discussion.  It included several fascinating stories of overcriminalization and the impact of this phenomenon on people, families, and communities.  The panel also addressed the symbiotic relationship between plea bargaining and overcriminalization (see article here regarding this topic).  Finally, among other issues discussed, the panel offered thoughts regarding potential solutions to overcriminalization with a particular focus on the role of Congress in drafting criminal laws.  


Interestingly, several days after the presentation, Senator Orrin Hatch (Utah) took to the floor of the U.S. Senate and presented his approach to reforming the U.S. criminal justice system.  Specifically, he focused on the need for meaning criminal intent requirements to ensure that "honest, hard-working American are not unjustly imprisoned."  

Senator Hatch also discussed overcriminalization and touched on many of the issues presented during the above panel discussion.
For too long, Congress has criminalized too much conduct and enacted overbroad statutes that sweep far beyond the evils they’re designed to avoid.  Surely, of all the categories of laws we pass here in Congress, we should take most care with criminal laws.  Criminal laws empower the state to deprive citizens of liberty and precious financial resources.  They carry serious collateral consequences, including loss of the right to vote, the right to own a firearm, and the ability to hold certain jobs.  And they permit the state to brand citizens with that most repugnant of all titles—criminal.  There is simply no excuse for sloppily drafted, slapdash criminal laws.  Too much is at stake.
Senator Hatch's full speech is available here.



Monday, September 14, 2015

Last Week Tonight Discusses Plea Bargaining

Below is a link to an excellent piece that appeared last night on Last Week Tonight with John Oliver.  The show has been focusing a lot on criminal justice issues lately.  This particular piece on public defenders includes discussion of plea bargaining and innocence, including the story of Erma Faye Stewart.


Hopefully, the show will soon have a piece devoted exclusively to the plea bargaining issue.

DAG Yates Issues Memo re Corporate Wrongdoing and Individual Criminal Liability

Deputy Attorney General Sally Yates has issued a memorandum regarding "Individual Accountability for Corporate Wrongdoing."  The memorandum describes important new priorities and policies regarding the prosecution of individual employees, not just corporations, in cases involving corporate crime.

From the memorandum:
Fighting corporate fraud and other misconduct is a top priority of the Department of Justice. Our nation's economy depends on effective enforcement of the civil and criminal laws that protect our financial system and, by extension, all our citizens. These are principles that the Department lives and breathes- as evidenced by the many attorneys, agents, and support staff who have worked tirelessly on corporate investigations, particularly in the aftermath of the financial crisis.

One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system.
The memorandum goes on to make substantive changes to the Principles of Prosecution of Business Organizations (USAM 9-28.000 et seq.), available here.  The changes fall into 6 categories:

  1. To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct. 
  2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.
  3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another. 
  4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals. 
  5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized. 
  6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay. 

Read the entire memorandum here.  The New York Times also has an article about the memorandum here.

Thursday, September 3, 2015

Registration Open for ABA CJS Global White Collar Crime Institute

Registration is now open for the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute, which will take place November 19-20, 2015 at the Ritz-Carlton Shanghai Pudong in Shanghai, China.  The event is done in collaboration with the KoGuan Law School of the Shanghai Jiao Tong University.  I am honored to serve as the Institute Chair and hope to see many of my blog readers at the event.

This conference will be an incredible opportunity to interact with prosecutors, judges, defense counsel, accountants, in-house counsel, and academics from the U.S., China, and other parts of the world as they convene to discuss the complexities of international white collar crime.  

More from the registration website:
The goal of the conference is to bring the energy and excitement of our previous international white collar crime conferences to Asia and create unique opportunities for our participants to network and explore the legal complexities of white collar crime in the growing Chinese legal market. Conference topics will include:
  • General Counsels’ Roundtable
  • Enforcers' Roundtable
  • How to Conduct an International Internal Investigation
  • Recent Developments in Global Antitrust Cartel Enforcement and Anticipated Implications for China and Asia
  • Comparative Legal Systems & Special Enforcement Issues in China, the US & Beyond
  • Year in Review: Lessons Learned from Recent White Collar Crimes Prosecutions in China & the US
  • Trends Regarding Anti-Corruption Enforcement in China & the US
  • Cyber Crime & Virtual Currencies
  • Social Responsibility of Corporations
LUNCHEON KEYNOTE SPEAKER – November 19
Sung-Hee Suh, U.S. Deputy Assistant Attorney General  
Suh was appointed in Sept. 2014 as the U.S. Department of Justice's Deputy Assistant Attorney General overseeing the Criminal Division's Fraud, Appellate and Capital Case Sections.  She re-joined the Department after 15 years in private practice at Schulte Roth & Zabel LLP in New York, where she was a partner in the Litigation group and focused on representing institutions and individuals in financial fraud, securities regulatory, Foreign Corrupt Practices Act, anti-money laundering and sanctions matters.  
The complete program is also now available on the ABA CJS registration website. 

Sentencing the Wolf of Wall Street: From Leniency to Uncertainty

I have just released a new article discussing the sentencing of Jordan Belfort, better known as the "Wolf of Wall Street."  I use this case as a mechanism for considering how white collar sentencing has evolved from the 1980s until today.  In particular, the article examines the growth in uncertainty and inconsistency in sentences received by major white collar offenders over this period of time and considers some of the reasons for this trend.  The article also examines the impact of recent amendments adopted by the U.S. Sentencing Commission on white collar sentences.

Lucian E. Dervan, Sentencing the Wolf of Wall Street: From Leniency to Uncertainty, 61 Wayne Law Review -- (2015).

Abstract:

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time. In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.

Tuesday, August 25, 2015

Please Join Us for the 2015 ABA CJS Work-in-Progress Roundtables

Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC.  The roundtables will be held on Thursday, October 22, 2015 from 12:30-3:00pm at the Loews Madison Hotel, and the ABA will provide sandwiches and drinks for lunch.  The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel.  The entire ABA CJS Fall Institute Program is available here.

We hope you will consider workshopping your criminal justice works-in-progress at these roundtables.  Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you’re interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at ldervan@law.siu.edu by Sept. 15, 2015.  Space is limited, and presenters will be chosen by members of the organizing committee.

This is an excellent opportunity for academics at any stage of their careers, and for those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, but there is no registration fee for participating in the roundtables.  If you decide to participate in the remainder of the ABA CJS Fall Institute, you will need to register for that event separately – see here for registration information.

We are also excited to note that this year’s workshop will begin with a brief opening address by Professor Stephen A. Saltzburg of the George Washington University Law School.  Professor Saltzburg will discuss how to create and execute a productive and impactful research agenda.  Professor Saltzburg is one of the nation’s leading scholars and has authored over twenty books and over 100 articles.  Professor Saltzburg’s talk is not to be missed.

The Criminal Justice Section has secured a special room rate of $269 single/double per night at the Lowes Madison Hotel.  This rate can be reserved by calling 855-255-6397 and referring to the “ABA Criminal Justice Section Fall Institute.”  You can also book using this code online at https://www.loewshotels.com/madison/CJS-Fall-Institute-Meeting-2015?corpcode=CJSO21.  Reservations must be made by Thursday, October 1, 2015 at 5:00pm EST to secure this rate.

Please spread the word to those who might be interested, including those not yet in academia.  We have included below some information regarding last year’s workshop.  We hope to see everyone in D.C. at the end of October.

All the best,

Lucian E. Dervan (SIU Law) and Meghan J. Ryan (SMU Law)
Co-Chairs, ABA CJS Academics Committee

Information Regarding Last Year’s Roundtable

On October 23, 2014, the ABA Criminal Justice Section Academics Committee hosted academic roundtables at the ABA Criminal Justice Section Seventh Annual Fall Institute. At these roundtables, scholars from across the country discussed papers on topics ranging from big data’s effect on jury selection to whether second-look sentencing is consistent with the asserted purposes of the Model Penal Code. Participants in the academic roundtables included Joanmarie Davoli (Florida Coastal, now Fed. Soc.), Cara Drinan (Catholic), Andrew Ferguson (Univ. of D.C.), Lea Johnston (Florida), Kevin Lapp (Loyola LA), Ion Meyn (Wisconsin), Steve Morrison (North Dakota), Anthony O’Rourke (Buffalo), and Meghan Ryan (SMU).

Here is a sampling of the great work they presented:

The Miller Revolution, by Cara Drinan (forthcoming in the Iowa L. Rev.)
In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences.  In this Article, I argue that the Miller trilogy has revolutionized juvenile justice.  While we have begun to see only the most inchoate signs of this revolution in practice, this Article endeavors to describe what this revolution may look like both in the immediate term and in years to come. Part I demonstrates how the United States went from being the leader in progressive juvenile justice to being an international outlier in the severity of its juvenile sentencing. Part II examines the Miller decision, as well as its immediate predecessor cases, and explains why Miller demands a capacious reading. Part III explores the post-Miller revolution in juvenile justice that is afoot. Specifically, Part III makes the case for two immediate corollaries that flow from Miller, each of which is groundbreaking in its own right: 1) the creation of procedural safeguards for juveniles facing life without parole (“LWOP”) comparable to those recommended for adults facing the death penalty; and 2) the elimination of mandatory minimums for juveniles altogether. Finally, Part III identifies ways in which juvenile justice advocates can leverage the moral leadership of the Miller Court to seek future reform in three key areas: juvenile transfer laws; presumptive sentencing guidelines as they apply to children; and juvenile conditions of confinement.

Strictissimi Juris, by Steve Morrison (67 Ala. L. Rev. __ (forthcoming 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2535115)
Guilt by association is universally rejected, but its criticisms are always based on the substantive due process right to individual, not imputed, liability.  The rule of strictissimi juris promises to be the procedural counterpart to the substantive right.  Its promise, however, has gone unfulfilled because it is little understood or developed. This article provides a descriptive, prescriptive, and contextual dissertation on strictissimi juris.  Descriptively, it provides the jurisprudential foundation and definition of strictissimi juris.  Prescriptively, it sets forth the purposes for which lawyers and courts have invoked strictissimi juris, thus providing a guide for how future lawyers might invoke strictissimi juris, and courts apply it.  Contextually, it analogizes strictissimi juris to substantive canons that play important roles in the separation of powers.

Tuesday, August 18, 2015

New York Times Magazine on Bail and Plea Bargaining

The New York Times Magazine has an excellent article entitled "The Bail Trap."  The article discusses the relationship between bail, innocence, and false pleas of guilt.  Below is a portion of the article:
With national attention suddenly focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.
The entire article is available here.

Tuesday, July 21, 2015

New Article - Sentencing the Wolf of Wall Street

I recently posted a new article to SSRN entitled "Sentencing the Wolf of Wall Street: From Leniency to Uncertainty."  The article, which is based on my presentation during a recent symposium, examines the Jordan Belfort ("Wolf of Wall Street") prosecution as a case study for considering how white collar sentencing has changed from the 1980s to today.  I also delivered a lecture regarding white collar sentencing based on this article at the recent 2015 U.S. Sixth Circuit Conference in Detroit, Michigan.

The abstract for the piece is below.
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time. In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
The article will appear shortly in the Wayne Law Review. To download a free copy of the entire article, click here.

New Article - Defining White Collar Crime

I recently posted a new article to SSRN entitled "'White Collar Crime': Still Hazy After All These Years."  The article is authored with Professor Ellen S. Podgor of Stetson University College of Law. Below is the abstract.
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.
The article will appear later this year in the Georgia Law Review.  To download a free copy of the article, click here.

Friday, July 10, 2015

Article - Content and Comprehensibility of Juvenile and Adult Tender-of Plea Forms

For those looking for some summer reading regarding plea bargaining, I recommend Allison Redlich and Catherine Bonventre's article entitled "Content and Comprehensibility of Juvenile and Adult tender-of_Plea Forms: Implications for Knowing, Intelligent, and Voluntary Guilty Pleas."

The Abstract reads:
The overwhelming majority of criminal convictions in the United States are obtained through guilty pleas. To be constitutionally valid, guilty pleas must be knowing, voluntary, and intelligent. The information the defendant relies on to make a knowing, voluntary, and intelligent plea decision may be conveyed to the defendant through several modes, including but not limited to communication with defense counsel. Here, we address a mode that to our knowledge has previously not been systematically examined—tender-of-plea (ToP) forms. ToP forms are written instruments that inquire into whether the defendant understands and appreciates the plea decision and is capable of entering it. Using content analysis and comprehensibility measures, we examined a national sample of 208 tender-of-plea forms for both juvenile and adult defendants to determine what information they contained and their level of comprehensibility. The ToP forms were coded for several items concerning knowledge and voluntariness including rights waived, direct and collateral consequences, and capacity. Our findings show that the forms (a) are highly variable in their content, (b) exceed the reading comprehension of most defendants, and (c) are available more often to adult than to juvenile defendants. The implications of these findings are the forms should not be used to stand in place of “full and vigorous” judicial plea colloquies or meaningful defender-defendant discussions about plea decision-making.
To access the article, click here.

ACLU and Koch Industries Partner on Overcriminalization

Politico Magazine has an interesting piece by Anthony Romero, Executive Director of the ACLU, and Mark Holden, General Counsel of Koch Industries, entitled "A New Beginning for Criminal Justice Reform."  In the piece, the two argue in favor of the bipartisan Safe, Accountable, Fair and Effective Justice Act (SAFE Justice Act) introduced in Congress on June 25, 2015 by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.).

The piece begins:

The criminal justice system’s problems are evident all around us.

Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety. From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes. Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable. Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer. In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large.

That is why we, two unlikely allies — the American Civil Liberties Union and Koch Industries — support Reps. Sensenbrenner and Scott’s new bipartisan reform proposal. Both of our organizations are deeply concerned with helping the least fortunate and ensuring that justice is served equally and to all, regardless of their socioeconomic status or their station in life. The SAFE Justice Act contains numerous reforms that will begin turning this shared dream into a reality.
You can read the entire article and its discussion of the specific proposals in the SAFE Justice Act here.

I had the honor of testifying before Representat
ive Sensenbrenner and Scott's bipartisan "Over-Criminalization Task Force" regarding the topic of "Regulatory Crime: Solutions" on November 14, 2013.  You can read my 2013 testimony here.  You can also read my article regarding the symbiotic relationship between overcriminalization and plea bargaining here.

The Dynamics of the Plea Bargain - New York Law Journal

The New York Law Journal has a piece entitled "The Dynamics of the Plea Bargain" that is well worth a read.  The article is an edited version of a speech delivered by Paul Shechtman, partner at Zuckerman Spaeder, on June 2, 2015 at the State University in Albany to the Research Coordination Network on Understanding Guilty Pleas.  The Research Coordination Network is a group funded by the National Science Foundation with the goal of fostering new research on the process that generates guilty pleas.  I am honored to be a member of this group.

Paul Shechtman's talk begins:
I offer these comments as a lawyer and teacher who has practiced and thought about plea bargaining for more than 30 years. There was a day when I could run a regression analysis but that time is long gone.

I will convey my thoughts about plea bargaining by telling you three stories.

The first story dates to 1970, well before I began practicing law. That year, the U.S. Supreme Court decided Baldwin v. New York. Prior to Baldwin, under Section 40 of the New York Criminal Code, defendants charged with class A misdemeanors in New York City (that is to say, crimes for which the maximum term of imprisonment was one year) were tried either to one or three judges. Class A misdemeanants had no jury trial right. In Baldwin, the Supreme Court declared that Section 40 was unconstitutional: if the authorized sentence of imprisonment was more than six months, a defendant had a constitutional right to a jury trial.

As scholars, you may be asking yourself what happened in New York City after Baldwin? In 1971 the student authors of the Columbia Journal of Law and Social Problems asked themselves that question. To answer it, they compared data from the six months before Baldwin and the six months after Baldwin. Here is what they learned:

In the six months before Baldwin, 27.6 percent of non-dismissed cases were tried to either one judge or three judges, a defendant had his choice. Two to four cases could be tried a day. By comparison, in the six months after Baldwin, the trial rate fell to 16.3 percent, and the vast majority of those trials were still non-jury. Most defendants who went to trial waived their new right to a jury trial. Indeed in the six months after Baldwin only 63 cases (2.5 percent of the non-dismissed cases) were tried to a jury. The average jury trial took between 2 1/2 and 3 days to complete.

What occurred after Baldwin was more plea bargaining. Sentences for those who pleaded guilty were reduced to make pleading guilty more attractive. In the six months prior to Baldwin, 25 percent of sentenced offenders received less than 60 days; in the six months after Baldwin, the number increased to 41 percent. Sentences of more than 60 days were reduced in proportion.

That is my first story, and I will return later to its implications.
The article then continues with additional stories and observations regarding their significance to the plea bargaining issue. The entire article is available here.

To learn more about the Research Coordination Network, including links to various articles and resources regarding plea bargaining, visit the Network's website here.

Tuesday, March 31, 2015

Article Explores "America's Toughest Federal Prison"

The New York Times has an interesting article examining the federal supermax prison in Florence, Colorado, known as the ADX.  As noted in the article, the prison houses many infamous criminals, including Ted Kaczynski, Eric Rudolph, Zacarias Moussaoui, Ramzi Yousef, and Terry Nichols.  Little is known about the facility and its operation.  Using interviews with former inmates at the ADX, information obtained as part of an ongoing lawsuit against the facility, and other sources, the article offers readers a glimpse inside.
The ADX can house up to 500 prisoners in its eight units. Inmates spend their days in 12-by-7-foot cells with thick concrete walls and double sets of sliding metal doors (with solid exteriors, so prisoners can’t see one another). A single window, about three feet high but only four inches wide, offers a notched glimpse of sky and little else. Each cell has a sink-toilet combo and an automated shower, and prisoners sleep on concrete slabs topped with thin mattresses. Most cells also have televisions (with built-in radios), and inmates have access to books and periodicals, as well as certain arts-and-craft materials. Prisoners in the general population are allotted a maximum of 10 hours of exercise a week outside their cells, alternating between solo trips to an indoor “gym” (a windowless cell with a single chin-up bar) and group visits to the outdoor rec yard (where each prisoner nonetheless remains confined to an individual cage). All meals come through slots in the interior door, as does any face-to-face human interaction (with a guard or psychiatrist, chaplain or imam). The Amnesty report said that ADX prisoners “routinely go days with only a few words spoken to them.”
The entire article is available here.

Monday, February 2, 2015

Judge Rakoff and Professor Garrett on Deferred Prosecution Agreements

Deferred prosecution agreements (DPAs) are now a common aspect of the corporate criminal enforcement landscape.  While DPAs do not result in a criminal conviction for the corporation, these types of agreements share many of the same characteristics as plea bargains.  In a recent article featured in the New York Review of Books, Judge Jed Rakoff discusses a recent book published by Professor Brandon Garrett entitled Too Big to Jail: How Prosecutors Compromise with Corporations.

From Judge Rakoff's review:
So-called “deferred prosecutions” were developed in the 1930s as a way of helping juvenile offenders. A juvenile who had been charged with a crime would agree with the prosecutor to have his prosecution deferred while he entered a program designed to rehabilitate such offenders. If he successfully completed the program and committed no other crime over the course of a year, the charge would then be dropped.

The analogy of a Fortune 500 company to a juvenile delinquent is, perhaps, less than obvious. Nonetheless, beginning in the early 1990s and with increasing frequency thereafter, federal prosecutors began entering into “deferred prosecution” agreements with major corporations and large financial institutions.
Read the entire book review here.

You can purchase a copy of Professor Garrett's excellent book here.

Monday, January 26, 2015

Interesting Op-Ed Re "Serial" and Plea Bargaining

Many people have listed to the hit podcast "Serial" by now.  For those who have not, it is an extremely interesting show detailing the prosecution of Adnan Syed for the 1999 murder of his former high school girlfriend.

This weekend, The New York Times published an Op-Ed about the case.  This is not surprising given the recent publicity around the Podcast.  What was surprising, however, was that the Op-Ed dealt less with the evidence against Syed and more with the fact that he did not plead guilty.

From the introduction:

OUR modern criminal justice system is designed to avoid jury trials. Through investigation and considered use of discretion, prosecutors are expected to charge only when there is sufficient evidence to convict. Once charged, defendants are encouraged to plead guilty in part to avoid a “trial penalty” — a longer sentence after a trial, often a much longer one. And 95 percent of them do just that. The Supreme Court acknowledged this reality in 2012 when it described our criminal process as “a system of pleas.”
You can read the entire Op-Ed here.

Tuesday, January 13, 2015

Excellent Opportunity for Doctoral Students and Recent Ph.D. Graduates re Guilty Pleas

Are you interested in researching the processes that generate guilty pleas? Are you currently studying guilty pleas or plea bargaining (e.g., criminal sentencing outcomes)?  The Research Coordination Network (RCN) on Understanding Guilty Pleas is hosting a research workshop June 2-3, 2015, at the University at Albany, in Albany NY. We are seeking doctoral-level graduate students and recent Ph.D. graduates from any discipline interested in participating. This is an excellent opportunity to network with an interdisciplinary group of well-known scholars keenly focused on making groundbreaking progress in this important but under-researched area.

The RCN, funded by the National Science Foundation and led by Professor Shawn Bushway, was created to invigorate interdisciplinary research on guilty pleas and related decision-making processes. The RCN includes three cores focused on prosecutorial, defense, and courtroom workgroup decision-making. More about the RCN and its members can be found at http://www.albany.edu/understanding-guilty-pleas/index.php

The conference will host approximately 40 scholars interested in the empirical study of guilty pleas, representing the fields of economics, criminology/criminal justice, psychology, sociology, law, public policy, political science, etc. There will be plenary presentations of current or recent research on the cutting edge of guilty plea research, a group-networking dinner, and a poster session.

Funding is available for up to 10 doctoral students and individuals who have received their doctorate within the past three years (2012 or later). Funding includes travel to and from the conference, lodging, and a per diem. The workshop is open to both individuals who are interested in getting more involved in this important area of research and to individuals who are actively conducting research in the area of guilty pleas.  Applications from minorities are strongly encouraged.

1) For Individuals Interested in Plea Research. To apply, email the following materials by March 1, 2015 to PleaResearch@albany.edu:
  • A one-to two-page (single-spaced, 12-point font) essay explaining your interest in guilty plea research. Applicants who are able to integrate their past or current research endeavors to plea-relevant research will have a higher chance of success. Applicants with viable research questions/ideas will also have a higher chance of success
  •  Curriculum vitae
  •  Name and contact information (email, phone number) of your graduate advisor or main reference

2) For Individuals Already Conducting Plea Research. To apply, email the following materials by March 1, 2015 to PleaResearch@albany.edu:
  • A 750-word abstract of a current plea-related project.  The project does not need to be finished and can be on any element that affects the process that generates guilty pleas.  If selected, you will present your research as a poster at the workshop poster session
  •  Curriculum vitae
  • Name and contact information (email, phone number) of your graduate advisor or main reference


For questions, please contact Professor Allison Redlich, aredlich@albany.edu, 518-442-4217.