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 NJ.com 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.

Thursday, June 15, 2017

New Report from Fair Trials on Plea Bargaining Around the World

A new report from Fair Trials is a must read for those interested in plea bargaining issues.  Fair Trials is an organization working globally to "improve respect for the fundamental human right to a fair trial."

From the description of the report on the Fair Trials website:
The trial is the archetype of criminal justice. It has captured the public imagination. Just think of the dominance of court-room drama in film, TV and literature: the intense personal drama of the trial for the defendant, whose life hangs in the balance. The public drama of the trial: after the shadowlands of police custody, the evidence and the actions of police and prosecutors are exposed to the bright light of scrutiny. The public sees the rule of law in action, witnesses real-time, the search for truth and justice.

But the trial is starting to disappear. In many parts of the world, trials are being replaced by legal regimes that encourage suspects to admit guilt and waive their right to a full trial. Of the 90 countries studied by Fair Trials and Freshfields, 66 now have these kinds of formal “trial waiver” systems in place. In 1990, the number was just 19. Once introduced, trial waivers can quickly dominate. In Georgia, for example, 12.7% of cases were resolved through its plea bargaining system in 2005, quadrupling to 87.8% of cases by 2012.

The drama of the contested trial is being overtaken by “deals” struck behind closed doors. The personal drama, of course, is no less intense. As a defendant, you have a single life-changing decision to make. Confronted with the overwhelming power of the state and often in detention, your options probably don’t look particularly appealing: plead guilty and get convicted, albeit with a shorter sentence; or gamble on your chances in court where, if convicted, you’ll be sentenced more harshly.

...

When “incentives” to plead guilty become too extreme, they can persuade innocent people to admit crimes they did not commit. “I’d never plead guilty to something I didn’t do” – you may think this, but going to trial is a gamble and the stakes can be exceedingly high: defendants may plead guilty to avoid the threat of the death penalty or life without parole. In federal drug cases, mandatory minimums have contributed to a system in the US where defendants convicted of drug offences received sentences on average 11 years longer by going to trial rather than pleading. To provide more context for this statistic in the United States, 65 out of the 149 people exonerated of crimes in 2015 had pleaded guilty (44%).
The entire Fair Trials report can be downloaded here.

If you'd like to read more about the likelihood an innocent defendant might falsely plead guilty to a crime, download a free copy of my article The Innocent Defendant's Dilemma here.

Wednesday, May 3, 2017

Second Global White Collar Crime Institute - Sao Paulo, Brazil

In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China.  It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field. 

I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe.  The program is now available online, and it is shaping up to be another spectacular event. 

The program includes the following panels:

·      A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
·      Navigating Cross Border Government Investigations and Prosecutions
·      Trends Regarding Global Anti-Corruption Enforcement
·      A View of Global White Collar Crime from the Bench
·      Preparing for the Globalization of Corporate Internal Investigations
·      Navigating Global Compliance Trends and global Enforcement Priorities

I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments.  Register here while space is still available. 




Tuesday, February 14, 2017

ABA CJS Hong Kong Conference - Global Investigations and Compliance

As many readers know, I am heavily involved in planning international white collar crime conferences with the American Bar Association Criminal Justice Section.  These have become wonderful learning and networking opportunities for those with an interest in the many issues in the field that transcend national boundaries. 

I’m excited to announce the next international conference offering will occur on April 5, 2017 in Hong Kong.  The event will focus on Global Investigations and Compliance:  From Regulatory Trends to Leveraging Innovation and Technology.  I expect this conference to be a wonderful compliment to the successful Global White Collar Crime Institute the American Bar Association held in Shanghai in 2015.  If you attended the Shanghai event, I hope you will join us again and reconnect with the many colleagues and contacts you established at that earlier conference.  If you were not in attendance in Shanghai, I hope you will join us in Hong Kong and be introduced to the growing network of international professionals making these American Bar Association white collar conferences an important part of their network. 

Seating is limited for this event, and I hope you will register today to reserve your spot (click here to register).  I look forward to seeing many of you in April. 

Official ABA Event Description

PwC Hong Kong and the American Bar Association are hosting a full day seminar with four robust panel discussions followed by a networking reception.  The panel sessions will focus on a number of pertinent topics, such as exploring regulatory updates, international investigations, navigating cross-jurisdictional issues in Southeast Asia, and the future of blockchain technology in compliance programs.  The content for these panels will be delivered by leading experts, including prominent attorneys in the US and Asia, US regulators, consulting professionals, corporate executives, professors, and others.  The target attendees for this event are international and Hong Kong/China based legal and corporate professionals focused on white collar crime and compliance.

Topics include:
· Regulatory Update: Recent Trends in Enforcement
· Current State of International Investigations
· Navigating Cross-Jurisdictional Issues in the South Asian Market
· Block-chain Technology: What does it mean for the Future of 
Compliance Programs?


More information here.