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Showing posts from December, 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 …

Professor Dervan Lectures Regarding Plea Bargaining in Japan

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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…

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.


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.