Thursday, December 6, 2018

Professor Dervan's New Scholarship on the Supreme Court and Plea Bargaining

My new piece, entitled Class v. United States: Bargained Justice and a System of Efficiencies, is now available for free download on SSRN.  If you are interested in the state of plea bargaining research, including law and psychology research, and where the Supreme Court might go next, you'll enjoy this new article. 

The piece ends with these words:
We know today, based on the research described above along with a steadily increasing number of real-world examples, that the incentives to plead guilty can be overpowering—indeed, so overpowering that even innocent defendants will sometimes take this path. When the Court addresses the fundamental question of defendant decisionmaking, it will have to wrestle with this reality and decide how best to proceed with the development of its plea-bargaining jurisprudence. Recall that in Brady, the Court said, “[W]e would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.” Yet, that is exactly where we find ourselves almost 50 years later, waiting on the Court both to recognize and to address that fact in light of all that we now know.

Does this portend that the Court might one day reverse course and decide that its 1970 approval of what has since become a veritable plea-bargaining machine was a mistake? I think not. Even if some of the justices desired this path, the Supreme Court of today stands in an even worse position than the Court of 1970 to stop plea bargaining’s triumph. Plea bargaining has become a fully accepted part of our criminal justice system and, because of that acceptance, our system has grown even more reliant on bargained justice for its continued functioning. But completely prohibiting plea bargaining is likely an unnecessary step, and indeed a step too far, if our focus is plea bargaining’s innocence problem. That concern is best addressed, I believe, through more focused efforts to fill in the various gaps that were created over the many years during which plea bargaining evolved and expanded in the shadows without much consideration of its operation or ramifications. Given that all but three to five percent of convictions each year in America come from guilty pleas, the Court must provide defendants greater rights before, during, and after the plea-bargaining process. Examples might include meaningful grand jury reform; better access to information, including exculpatory information, before pleading guilty; and reasonable limitations on the size of sentencing differentials sometimes used to punish those who exercise their constitutional right to trial. Fortunately, this is the type of work the Court has been focused on in the plea-bargaining context for a number of years as it has worked to provide defendants greater rights. We must now encourage the continuation of this journey so that the Court might expand on its previous work and reach these and other new and important topics.

Finally, before concluding, one must also observe that embracing the realities of plea bargaining’s innocence issue raises another fundamental question the Court must address in this long journey to create modern plea-bargaining law. If, even knowing the alarming power of plea bargaining to ensnare the innocent, we continue forward, are we not conceding that beyond being merely a system of pleas, today’s criminal justice system is, for the most part, actually a system of efficiencies? As a recent article regarding plea bargaining observed, “Though there are several reasons underlying the rise in plea bargains, the primary reason—efficiency—remains true today and is the most-often-cited reason for maintaining the practice.” What does it means to concede that the criminal justice system today is more about efficiency and less about justice than our Founders might ever have envisioned? What does it mean that in a system that values individual liberty, we have marginalized the right to a jury trial because of our inability to operate an overcriminalized system without bargained justice? While I do not know how those questions will be answered, I do think they are the concerns to which a deep examination of plea bargaining must eventually lead us—and the Court.

Click here to download a free copy of the entire piece. 


Class v. United States: Bargained Justice and s System of Efficiencies
Cato Supreme Court Review (2018)

In 2018, the United States Supreme Court ruled in Class v. United States that a defendant does not inherently waive his or her right to appeal constitutional claims simply by entering an unconditional plea of guilty. Rather, the Court determined such waivers must be express. While the issue decided in Class was relatively straightforward, the case stands more importantly as another pillar in the growing body of modern plea-bargaining jurisprudence. In particular, Class is of note because the facts of the case and the discussions surrounding the appeal raise fundamental questions regarding the operation of the plea-bargaining machine, the psychology of defendant decision-making, and the voluntariness of plea bargaining given our growing understanding of the phenomenon of factually innocent defendants falsely pleading guilty. This article begins with an examination of Class, including the incentives that led the defendant to plead guilty despite his belief that the statute of conviction infringed his constitutional rights. The article then examines the shadowy rise of plea bargaining during the 19th and 20th centuries and the recent focus on plea bargaining by the Supreme Court since its 2010 decision in Padilla v. Kentucky. This analysis of recent plea-bargaining case law will illustrate that fundamental issues are beginning to rise to the surface regarding defendant decision-making and voluntariness in the plea context, including the reliability of admissions of guilt in return for plea bargains and the phenomenon of false pleas. The article, therefore, next examines recent psychological research on these topics, including research demonstrating that factually innocent individuals will falsely confess in return for the benefits of a bargain and research finding that pretrial detention is a driver of false pleas. Finally, the piece considers the ramifications of growing evidence that plea bargaining has a voluntariness and reliability problem. Along with considering ways to address these concerns, the article proposes that these revelations will inevitably lead us to face a broader question. What does it mean if we have adopted a criminal justice system that embraces efficiency at the expense of accuracy?