Professor Dervan Testifies Before the Federal Senate of Brazil

On August 6, 2019, I had the opportunity to testify before the Federal Senate of Brazil regarding proposed legislation that would have created a sweeping formal plea bargaining system in the country.  

The American system of plea bargaining is so dominant today that one would be forgiven for imagining that this style of criminal procedure must have deep historical roots around the globe.  The truth, however, is that for most of history the common law has rejected plea bargaining as prohibitively coercive and an affront to the truth-seeking mission of the criminal justice system, an approach still taken in many common law countries today.  Plea bargaining as it is known today in the United States is actually a relatively recent American invention that appeared first in a significant way around the time of the American civil war, later became a tool of corruption during the early twentieth century, and eventually gained widespread use and legitimacy as a response to the burdens of over-criminalization around the time of American Prohibition. 

While plea bargaining began as an American invention, it is now being exported around the globe.  Japan, for example, began allowing plea bargaining for the first time in the summer of 2018.  In Brazil, which has had very limited plea bargaining in the past, legislation was recently introduced to create a sweeping plea bargaining system.  I had the privilege of being asked to review the proposed legislation and offer the Federal Senate of Brazil some thoughts regarding both the benefits and risks associated with the adoption of the legislation, along with some recommendations for ways to minimize the risks posed by introducing a broad bargaining procedure into their criminal justice system.  I hope to have the opportunity to work with the Brazilian legislature further to ensure that any plea bargaining legislation that is adopted leads to a balanced, efficient, and reliable plea bargaining process.

You can watch my testimony, which occurred via video, below.  You can also read the transcript of my full remarks to the Senate at the end of this blog post. 

HEARING

Before the

FEDERAL SENATE OF BRAZIL

COMMISSION OF CONSTITUTION AND JUSTICE

Testimony of Professor Lucian E. Dervan

Belmont University College of Law

August 6, 2019

           Thank you President Tebet, Senator Costa, and the members of the Commission of Constitution and Justice for inviting me to speak with you today regarding your pending plea bargaining legislation.

            I have had the opportunity to review the proposed language of Article 395-A, and appreciate the opportunity to offer some thoughts regarding both the benefits and risks associated with plea bargaining, along with some recommendations for ways to minimize the risks posed by introducing a broad bargaining procedure into your criminal justice system. 

            Plea bargaining is a powerful and dominant tool in the modern American criminal justice system.  In the American federal system, for example, around 97 percent of all convictions each year come not from a trial but from a plea of guilty.  According to the government, about 75% of these pleas of guilt are the result of an offer of leniency in return for the plea or a threat of further punishment if the defendant goes to trial and loses.

            It is important to note, despite its current central role, that plea bargaining has not always dominated the American system, nor does plea bargaining have a long common law history.  Rather, for most of history the common law has rejected plea bargaining as impermissibly coercive and an affront to the truth-seeking mission of the criminal justice system, an approach still taken in many common law countries today.  Even in the United States, early courts examining the use of bargains considered them inappropriate, with the Wisconsin State Supreme Court saying in 1877 that plea bargaining was “hardly, if at all, distinguishable in principle from a direct sale of justice.”

Plea bargaining as it is known today in America is, as this quote from Wisconsin indicates, actually a relatively recent invention that appeared first in a significant way around the time of the American Civil War in the latter half of the nineteenth century, later became a tool of corruption during the early twentieth century, and eventually gained widespread use and legitimacy as a response to the burdens of over-criminalization beginning in the era of American Prohibition.

While time does not allow me to delve more deeply into the historical roots of American plea bargaining today, I would refer members to my 2012 article entitled Bargained Justice in the Utah Law Review for a more detailed discussion.  I mention this history briefly here to make clear that plea bargaining is a modern phenomenon that grew from the shadows to dominate the American criminal justice system without significant oversight or regulation.  I applaud, therefore, your efforts to carefully consider what a plea bargaining system might look like as you debate whether to formally adopt such procedures in Brazil.

            Despite the strong common law rejection of the concept, as described a moment ago, plea bargaining did grow in the shadows to dominate the American criminal justice system, and this should not be surprising given the strong incentives and benefits that potentially emanate from its use for both the prosecution, the defense, and the court system.

           

At its simplest, plea bargaining is a contract for mutual benefits.  The government can save the time and expense of trial, along with obtaining the certainty of a conviction - something particularly important if the evidence in the case is weak.  The government can also use a generous plea offer to create an incentive for a defendant to cooperate and provide evidence against another person or in furtherance of an important public safety matter or law enforcement investigation.  Finally, plea bargaining can offer a formal mechanism for encouraging and rewarding acceptance of responsibility.

Importantly, the defendant may also gain significant benefits from such an agreement.  The defendant, for example, can avoid the significant financial, personal, and emotional costs of a trial.  The defendant can also often reap the benefit of a lower sentence, sometimes significantly lower, in return for pleading guilty.  Similarly, a defendant being held in pretrial detention may be able to secure their release through a plea bargain.  Finally, the defendant can capture some certainty regarding the results of the case by pleading guilty, something we know from psychological research is important to people, particularly those who are risk averse.

Plea bargaining, therefore, can be an efficient and mutually beneficial process for moving cases swiftly and cleanly through the criminal justice system and also a mechanism for gaining greater cooperation from defendants in building cases against others.

In addition to these types of benefits, however, we must also recognize the dangers inherent in a system that offers significant incentives for admissions of guilt and be cognizant of the effect efficiency might have on reliability.  These risks went mostly unnoticed as plea bargaining came to dominate the American criminal justice system in the 1900s and the result has led to much debate today about how we can improve the American system that is now so entrenched – a debate that has recently led to the creation of the American Bar Association Criminal Justice Section’s Plea Bargaining Task Force, a group which I am chairing. 

You have a great opportunity to learn from what has occurred in the American system and use that information to carefully consider how you might proceed with plea bargaining here.  So, with the remainder of my time, let me talk a little about plea bargaining’s innocence problem. 

It is now indisputable in the American criminal justice system that innocent people have pleaded guilty to offenses they have not committed and, in some such cases, have also provided false testimony against others to secure the bargain. 

In 2012, my colleague, Dr. Vanessa Edkins, and I, sought to add further clarity to this phenomenon by exploring the psychological aspects of false pleas and seeking to better understand just how willing an individual might be to falsely confess in the plea bargaining context. 

To do this, we created a psychological deception study that placed students in a position where they were accused of cheating and then offered a deal.  Though everyone in the study was accused of cheating, only about half of the students actually cheated, something we knew definitely because, unbeknownst to the participants, we had placed a confederate in the room with them.

All the students, regardless of factual guilt or innocence were then offered the opportunity to either plead guilty in return for a light punishment or proceed to trial and risk a greater punishment if they lost.  Greater details about the study and the paradigm constructs are available in our 2013 article entitled The Innocent Defendant’s Dilemma in The Journal of Criminal Law and Criminology.

Important to our discussion today is the fact that both guilty and innocent participants accepted the plea deal and admitted committing the academic misconduct.  Specifically, 89% of the students who had, in fact, cheated took the offer.  With regard to the students who had not cheated, 56% were willing to falsely confess to something they had not done in return for the benefits of the bargain.   

This groundbreaking study has now been successfully replicated numerous times by other labs around the world using our paradigm for validation.

The false pleas phenomenon also arose as an issue of significant concern in a recent collateral consequences study that I conducted with Professor Edkins.  In the study, we asked participants to examine several hypothetical situations and decide whether to accept a plea offer.  In some of the hypotheticals, participants were told to assume they were guilty of the charged offense.  In other hypotheticals, they were informed of their innocence.  Similarly, some hypotheticals involved pre-trial detention and others did not. 

Consistent with our earlier research, we found that participants in both the guilty and innocent conditions accepted the plea offer, thus demonstrating once again the problem of false pleas in return for incentives.  In addition, we observed that innocent participants were significantly more likely to plead guilty when detained pretrial, with the numbers of false pleas more than doubling when the individual in the hypothetical was in pretrial detention.

            Our studies and the many others that are emanating from them demonstrate that there are deep psychological forces at work when defendants are faced with a plea offer and that these decision-making processes can lead innocent individuals to falsely plead guilty.  As this chamber considers how to proceed with the current legislation, I hope you will carefully weigh these risks, because current research indicates this is not exclusively an American phenomenon. 

As I noted at the beginning of my testimony, plea bargaining is an American invention that rose to dominate our system in the 1900s.  But, as this hearing demonstrates, the use of plea bargaining around the world is growing rapidly.

            Given this global growth, Dr. Edkins and I, along with Professor Andrew Pardieck, decided to investigate the issue of false pleas and the reliability of plea bargaining globally by recently launching an updated and revised version of our cheating paradigm study simultaneously in the United States, Japan, and South Korea.

While the data is still preliminary and non-final, we can already see that plea bargaining’s innocence problem is global and should be an issue of concern in all countries, cultures, and legal systems adopting a plea bargaining system.  Let me share just a few preliminary results with you so that you might consider the implications of this information as you determine your next steps. 

In the new study, participants in the United States, Japan, and South Korea were once again placed in a situation in which cheating with a fellow student occurred roughly 50% of the time.  Regardless of guilt, all of the students were once again accused of cheating and offered the opportunity to plead guilty in return for a more lenient punishment or proceed to trial.  One important change in this study is that during part of the research we required the students pleading guilty to not only admit to their own conduct, but to provide information about the cheating and about who instigated the cheating.  The students in this version of the study were also required to agree to provide information, if necessary, about the cheating and about the role of the other student during a trial of that other student.  We did this to mirror similar requirements contained in Japan’s new plea bargaining laws. 

Our initial findings should give us further pause regarding the risks associated with the plea process.  First, once again we are finding that both guilty and innocent participants are willing to plead guilty.  This is occurring in all three jurisdictions, though, as would be expected, plea rates for innocent participants are lower than plea rates for guilty participants.  Importantly, we are also finding a significant number of innocent participants willing to not only falsely implicate themselves through a false plea, but also willing to falsely implicate others in return for the bargain.  Data on this point is still preliminary and only available in two of the three jurisdictions, but, as an example, the U.S. study is currently showing around half of the innocent participants who falsely plead guilty also being willing to falsely implicate the other student as the instigator of the cheating.

This new research reminds us that the phenomenon of false pleas holds the potential not only to capture factually innocent individuals responding to the benefits plea bargaining offers, but also holds the possibility of corrupting the larger truth-seeking mission of the criminal justice system by creating incentives for individuals to provide false information to investigators or to provide false testimony against others.

   

As I noted in the beginning of my testimony, the plea bargaining system holds great opportunity, but, as my research illustrates, also great risk.  Let me finish then by offering a few thoughts about the potential path forward should Brazil choose to formalize plea bargaining through this legislation.  There are a number of avenues that might be taken in conjunction with this legislation to mitigate the risks I have identified today.  Let me mention just a few to begin a conversation about this important aspect of creating a balanced, efficient, and reliable plea bargaining system.

  

First, consideration should be given to the impact of pre-trial detention on false plea rates and whether reforms are necessary in the pre-trial detention process to account for this risk. 

Second, the role of counsel is vital in ensuring defendants understand plea bargaining procedures and engage in the plea decision-making process in a careful, informed, and deliberate manner.  This includes ensuring that defense counsel has properly investigated the case before making a recommendation to the client.  To achieve these goals, consideration should be given to mechanisms to provide well-funded counsel to defendants early in the process. 

Third, consideration should be given to procedures for ensuring that relevant evidence, especially information known to the prosecution that tends to negate the guilt of the accused or mitigate the offense charged or sentence, is made available to defendants before a decision is made regarding whether to accept a plea deal.

 Fourth, consideration should be given to some limitation on the type and size of incentives that may be offered in return for pleading guilty to reduce the chances an innocent defendant might decide the cost of proceeding to trial is too high despite his or her innocence.  The current legislation includes some limitations, and consideration should be given to whether more guidance is necessary, including consideration of how charging decisions are made and whether mechanisms exist to prevent charging decisions being used to make less effective the limitations on sentencing reductions contained in the current legislation.

Fifth, consideration should be given to the role of the judiciary in the plea bargaining process and how the role of the judiciary can be used to mitigate, rather than exacerbate, some of the concerns discussed today.  This might include requiring the judiciary to examine whether there is additional corroborating evidence in the case beyond simply the defendant’s admission of guilt before accepting a plea of guilty.   

Sixth, consideration should be given to the role of waivers in a plea system, including which waivers may appropriately be requested of a defendant in return for a plea bargaining.  An example of a waiver widely believed to be inappropriate in the United States, for example, is the waiver of ineffective assistance of counsel as part of a plea bargain.

Seventh, consideration should be given to how transparency and accountability might be encouraged when implementing a new plea bargaining system.  These could include requirements such as requiring plea offers to be in writing and requiring that plea offers be disclosed to the court. 

Eight, consideration should be given to developing example practices for prosecutors to ensure that any new plea bargaining system is implemented in a manner that is uniform and that reflects the benefits and risks discussed here today.

Finally, consideration should be given to the creation of a process to collect data on the plea bargaining process, including the size of the incentives offered to defendants and the plea rate that results, from the very beginning of any system.  The collection of such data is incredibly important to both monitoring and understanding the functioning of any type of plea bargaining system that may be adopted.

I thank you for the opportunity to provide my thoughts on this important issue, and I would be happy to further assist the government of Brazil in the future as it considers the adoption of this legislation and, should it be adopted, during the process of implementing this new law.  I would also be happy to take any questions you may have for me today.