tag:blogger.com,1999:blog-49616613961823616872024-02-19T19:59:24.677-05:00The Plea Bargaining BlogThe Plea Bargaining Blog is dedicated to scholarship, articles and news regarding plea bargaining in criminal cases in the United States and around the world. On average, 95% of all criminal cases are resolved through plea bargains. As such, it is an integral part of the criminal justice system worthy of continuous examination and discussion. The purpose of this blog is to further our understanding of the plea bargaining machine and its role in the criminal justice system.Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.comBlogger301125tag:blogger.com,1999:blog-4961661396182361687.post-33059161760220238062024-01-11T16:45:00.002-05:002024-01-11T16:45:35.852-05:00New Article Explores the Psychology of False Pleas of Guilty<p>In a new article authored by Prof. Lucian Dervan, Dr. Vanessa Edkins, and Prof. Thea Johnson, the authors explore the forces that lead to false pleas of guilty through examination of two cases of serial offenders who remained undetected for significant periods of time in part because others were initially coerced into false pleas of guilty in the cases. </p><p>Access a free copy of the article <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4669584" target="_blank">here</a>.</p>From the introduction:<br /><br />The last decade has seen significant growth in academic research and literature related to the plea bargaining system. In particular, much research has explored the impact of plea bargaining on the accused, including the phenomena of false guilty pleas by the innocent and false testimony in return for bargains. Both false guilty pleas and false testimony often result from the coercive bargaining practices regularly found in the criminal system. Plea bargaining is coercive when it overbears the will of the defendant, to borrow a phrase from the Supreme Court’s decision in Brady v. United States. Because of the state’s power over a criminal defendant, some argue that every interaction between the two contains some element of coercion. Regardless of where one draws the line of coercion, at a minimum, when an innocent person condemns them self or other innocent people through the plea process, their will has been overborne by the coercive power of the state. This Article focuses on the link between coercive plea bargaining and both false guilty pleas and false testimony against others.<br /><br />Here, we seek to bring these harms and their attendant victims to light. We compile and synthesize the expanding body of research that demonstrates the clear connection between coercive plea practices and false guilty pleas and false testimony. This descriptive Part of the Article identifies the types of practices that put defendants most at risk of falsely condemning themselves or others. As the title of this Article suggests, we also identify the defendants who falsely plead guilty or who are compelled to offer false testimony as part of bargains and those against whom such false testimony is elicited as victims of plea bargaining, although they are often not attended to in this way. Understanding this category of defendants as victims expands our conception of the harm of certain regular features of the plea system.<br /><br />The use of coercive incentives to induce false pleas and false testimony prompts us to recognize the pressing need for reform in the bargained justice space. In particular, the plea bargaining system should be reformed, both to reduce the coercive incentives that lead to false guilty pleas and false testimony and to create more oversight to ensure that the system’s inherent discretion is not used improperly. To this end, the authors—all members of the American Bar Association Criminal Justice Section’s Task Force on Plea Bargaining—highlight the sections of the 2023 Task Force Report that most directly speak to the problem of coercive plea bargaining. We hope this Part of the Article will encourage legal stakeholders to prioritize reforming coercive plea bargaining and give them ideas for how to do it.<br /><br />This Article is the first part of a broader project that intends to shed light on the many, sometimes hidden or ignored, victims of coercive plea bargaining. These victims have received less attention than the practice itself. While this Article focuses on the first layer of victims of coercive plea bargaining, namely defendants who falsely condemn themselves or other innocents, a later article will focus on a second layer of victims, including the original victim, whose rights remain unvindicated when a false guilty plea allows the true perpetrator to escape justice, and also any victims who later fall prey to the actual guilty party. This broader two-part project intends to expand our understanding of who counts as a victim in the criminal justice system and the role of coercive bargaining in perpetrating these wrongs.<br /><br />In Part I, this Article explores the reasons that defendants falsely plead guilty. It provides an overview of the emerging body of literature on false guilty pleas, focusing on the factors that increase the risk of false guilty pleas. In Part II, this Article demonstrates how coercive plea bargaining encourages defendants to give false testimony against others. We also explore how these twin harms—false pleas and false testimony—should be seen as creating a category of victims of plea bargaining, namely defendants who are compelled to falsely condemn themselves and others. Finally, in Part III, this Article turns to a set of on-the-ground reforms that can reduce coercive bargains and their many victims.<br /><br /><p><span style="background-color: white; color: #505050; font-family: NexusSansWebPro; font-size: 16px;"><br /></span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-33896359995846078022023-12-11T12:56:00.003-05:002023-12-11T12:56:58.117-05:00Plea Bargaining Institute Launches New Website<p style="text-align: justify;">The recently created Plea Bargaining Institute announced the launching of its new website today. The news release from the institute is found below and you can access the new website here - <a href="http://www.pleabargaininginstitute.com">www.pleabargaininginstitute.com</a>. </p><p></p><blockquote><p style="text-align: justify;">The Plea Bargaining Institute is pleased to announce the launching of the institute's new website - www.pleabargaininginstitute.com. The website contains valuable information that will assist the institute in its mission to create a global intellectual home for academics, policymakers, advocacy organizations, and practitioners working in the plea bargaining space to share knowledge and collaborate.</p><p style="text-align: justify;">Lucian Dervan, Founding Director of the PBI said, "We are incredibly excited to launch the website today and begin the process of making research and caselaw regarding plea bargaining more accessible to those working in the field and to the public generally. One of the main missions of the PBI is to advance plea bargaining research and reform through the dissemination of knowledge. The website is one of the centerpieces of that work and will grow over time as more materials are added."</p><p style="text-align: justify;">The new website includes pages dedicated to plea bargaining reports, plea bargaining summaries, and institute events and news.</p><p style="text-align: justify;">Of the website launch, Rebecca Shaeffer of the National Disability Rights Network and a member of the PBI Board of Advisors said, "The Plea Bargaining Institute has launched an incredible resource that captures for the first time the "hidden law" of plea bargaining that forms the daily operation of criminal adjudication in this country. It's a groundbreaking effort that will be of immediate usefulness to criminal practitioners, researchers and advocates alike."</p><p style="text-align: justify;">The reports page creates a space where visitors can review materials both from the PBI and from other organizations. The page will contain reports from the PBI that capture research, analysis, and developments in the plea bargaining field. Currently, the page holds our report from the inaugural symposium.</p><p style="text-align: justify;">The summaries page provides visitors with a searchable database of important case law and research summaries. Currently, the summaries database contains a curated collection of significant U.S. Supreme Court cases involving plea bargaining since 1970. A unique feature of the website database is the caselaw feature that tracks sentencing differentials - the difference between the sentence offered as part of a plea of guilty and the sentence faced or received after trial. Along with including information about particular sentencing differentials in case summaries where that information is available, the database also allows visitors to search the entire database of cases by differential size. The current database also includes a handful of academic articles regarding plea bargaining. A large curated collection of significant plea bargaining academic research covering several decades will be added shortly, and further summaries of research and caselaw will be added on a rolling bases.</p><p style="text-align: justify;">Michael Heiskell, President of the National Association of Criminal Defense Lawyers, said of the website launch and the summaries page, "NACDL applauds the launch of the Plea Bargaining Institute’s website, which will provide the defense community with curated research and caselaw on plea bargaining. Access to these critical resources will support defense attorneys around the country who fight to end the coercive effects of plea bargaining every day. NACDL looks forward to continuing its work with the Plea Bargaining Institute to turn this goal into reality."</p><p style="text-align: justify;">Pursuant to the PBI mission to create opportunities for dialogue and collaboration, the institute convenes and participates in various events throughout the year which can be found on the events page of the website. The focus of these events and the target audiences for these offerings vary, but each is designed to further the institute’s mission of sharing knowledge and creating opportunities for collaboration. The flagship event each year is the PBI Symposium.</p><p style="text-align: justify;">The website's news page is a place where you can catch up on the latest news regarding the PBI and regarding research and developments in the plea bargaining field.</p><p style="text-align: justify;">Finally, in the contact us section of the website, visitors can sign up to receive email updates regarding the institute and its work.</p></blockquote><p></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-27552019364479215202023-08-17T12:05:00.000-04:002023-08-17T12:05:46.935-04:00ABA Adopts the 14 Principles on Plea Bargaining<div style="text-align: justify;">As Chair of the American Bar Association Criminal Justice Section from 2018-2019, I had the pleasure of creating three task forces. One of those task forces, which I went on to co-chair, was the Task Force on Plea Bargaining. The Task Force was comprised of representatives from the prosecution, defense, academy, advocacy organizations, and the state and federal systems. After over three years of work, we released our report and recommendations earlier this year (a blog post about the report is available <a href="https://thepleabargainingblog.blogspot.com/2023/02/aba-cjs-plea-bargaining-task-force.html" target="_blank">here</a>). Included in our report were 14 Principles that we developed to create a fairer, more transparent, and more just criminal system. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Last week in Denver, Colorado at the ABA Annual Meeting, I moved adoption of those 14 Principles in ABA Resolution 502. The Resolution received no opposition and was overwhelmingly adopted by the ABA House of Delegates. With the passage of Resolution 502, the 14 Principles now become the official policy of the ABA. It has been a long road and there is much left to do, but this is an important step forward.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Video of the Resolution discussion is below, along with coverage of the adoption of the 14 Principles and the 14 Principles themselves. </div><div><br /></div><div class="separator" style="clear: both; text-align: center;"><iframe allowfullscreen="" class="BLOG_video_class" height="266" src="https://www.youtube.com/embed/bC8CAmImxYM" width="320" youtube-src-id="bC8CAmImxYM"></iframe></div><br /><div>ABA Journal Article about Resolution 502 (<a href="https://www.abajournal.com/web/article/resolution-502-plea-bargaining" target="_blank">here</a>)</div><div><br /></div><div style="text-align: justify;"><b>The 14 Principles from the Report:</b></div><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 1:</b> A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice and legitimacy in the criminal justice system.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 2:</b> Guilty pleas should not result from the use of impermissibly coercive incentives that force a defendant to plead guilty rather than pursue their right to a trial.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 3: </b>A substantial difference between the sentence offered prior to trial and the sentence received after trial undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 4:</b> Charges should not be selected or amended to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 5: </b>The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 6:</b> A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 7: </b>There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 8:</b> The use of bail or pretrial detention to induce guilty pleas should be eliminated.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 9:</b> Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 10:</b> Although guilty pleas necessarily involve the waiver of certain trial rights, defendants should never be required to waive certain rights. Among them: the right to effective counsel, the right to challenge sentencing errors, the right to challenge the constitutionality of the statute of conviction and the right to appeal. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 11:</b> An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 12:</b> Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principles 13:</b> Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Principle 14: </b>At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.</div></div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-65191563077211299582023-02-22T16:28:00.000-05:002023-02-22T16:28:05.335-05:00ABA CJS Plea Bargaining Task Force Releases Report<p style="text-align: justify;"><span style="font-family: "Times New Roman", serif; font-size: 12pt;">Earlier
today, the American Bar Association Criminal Justice Section </span><i style="font-family: "Times New Roman", serif; font-size: 12pt;"><a href="https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/" target="_blank">Plea Bargaining Task Force</a></i><span style="font-family: "Times New Roman", serif; font-size: 12pt;"> released its final report, which includes 14 recommendations for
creating a more transparent, fairer and more just system. </span><span style="font-family: "Times New Roman", serif; font-size: 12pt;">Formed in 2019 when I served as Chair of the Criminal Justice Section, the task force was created to assess the state of plea bargaining in
America and was made up of prosecutors, defense attorneys, judges,
academics and members of various think tanks and advocacy organizations - including task force members affiliated with The Innocence Project, Southern
Poverty Law Center, Council on Criminal Justice, Fair Trials, NACDL, and the
Cato Institute. </span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif; font-size: 12pt;">More information about the task force and a copy of the report
are available on the task force <a href="https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/" target="_blank">website</a>.</span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif; font-size: 12pt;">The 14 Principles from the Report:</span></p><p>
</p><ul style="margin-top: 0in;" type="disc">
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 1</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
A vibrant and active docket of criminal trials and pre- and post-trial
litigation is essential to promote transparency, accountability, justice
and legitimacy in the criminal justice system.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 2</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
Guilty pleas should not result from the use of impermissibly coercive
incentives that force a defendant to plead guilty rather than pursue their
right to a trial.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 3</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
A substantial difference between the sentence offered prior to trial and
the sentence received after trial undermines the integrity of the criminal
system and reflects a penalty for exercising one’s right to trial. This
differential, often referred to as the trial penalty, should be
eliminated.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 4</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
Charges should not be selected or amended to induce a defendant to plead
guilty or to punish defendants for exercising their rights, including the
right to trial.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 5</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
The criminal justice system should recognize that plea bargaining induces
defendants to plead guilty for various reasons, some of which have little
or nothing to do with factual and legal guilt. In the current system,
innocent people sometimes plead guilty to crimes they did not commit. <o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 6: </span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">A defendant should have a right to qualified counsel in
any criminal adjudication before the defendant enters a guilty plea.
Counsel should be afforded a meaningful opportunity to satisfy their duty
to investigate the case without risk of penalty to their client.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 7:</span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"> There should be robust and transparent procedures at
the plea phase to ensure that the defendant’s plea is knowing and
voluntary, free from impermissible coercion, and that the defendant
understands the consequences of their decision to plead guilty.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 8</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
The use of bail or pretrial detention to induce guilty pleas should be
eliminated.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 9: </span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Defendants should receive all available discovery,
including exculpatory materials, prior to entry of a guilty plea, and
should have sufficient time to review such discovery before being required
to accept or reject a plea offer.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 10</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
Although guilty pleas necessarily involve the waiver of certain trial
rights, defendants should never be required to waive certain rights. Among
them: the right to effective counsel, the right to challenge sentencing
errors, the right to challenge the constitutionality of the statute of
conviction and the right to appeal. <o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 11: </span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">An adequate understanding of the collateral consequences
that may flow from a guilty plea is necessary to ensure the guilty plea is
knowing and voluntary.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 12: </span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Law students, lawyers, and judges should receive
training on the use and practice of plea bargaining consistent with the
findings and recommendations of this Report.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principles 13</span></b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">:
Court systems, sentencing commissions, and other criminal justice
stakeholders, including prosecutor offices and public defenders, should
collect data about the plea process and each individual plea, including
the history of plea offers in a case. Data collection should be used to
assess and monitor racial and other biases in the plea process.<o:p></o:p></span></li>
<li class="MsoListParagraph" style="color: black; margin-left: 0.25in; text-align: justify;"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Principle 14: </span></b><span style="color: windowtext; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">At every stage of the criminal process, there should be
robust oversight by all actors in the criminal system to monitor the plea
process for accuracy and integrity, to ensure the system operates
consistent with the Principles in this Report, and to promote
transparency, accountability, justice, and legitimacy in the criminal
system.</span></li>
</ul><div style="text-align: justify;"><span style="font-family: Times New Roman, serif;"><div>The report, which contains a detailed discussion of each of the above principles, notes that the current plea-bargaining system offers many benefits, including efficiency, cost savings, certainty and a mechanism to incentivize defendants to cooperate or accept responsibility. However, the report found those benefits come at a high cost in our current system. For example, coercive plea bargaining that values efficiency over accuracy leads the innocent to falsely plead guilty and victims' interests to go unvindicated. Plea bargaining can also allow police and government misconduct to go undetected. The report also found that plea bargaining can exacerbate existing racial inequality in the criminal system. Finally, it is important to note that each of us has the constitutional right to trial, and we found that defendants who exercise that right are often punished simply for doing so. </div><div><br /></div><div>This is why this diverse group representing various sides of the criminal system came together to recommend 14 principles to create a fairer, more just and more transparent system. I am very grateful to the ABA Criminal Justice Section for supporting this work. My deepest thanks also to the task force members, my Co-Chair, Professor Russ Covey of Georgia State University College of Law, and the Task Force Reporter, Professor Thea Johnson of Rutgers Law School. </div><div><br /></div><div><u>Media Related to the Task Force Report:</u></div><div><br /></div><div>Opinion piece written by Lucian Dervan, Thea Johnson, and Russ Covey - available <a href="https://dcjournal.com/plea-bargaining-is-broken-we-can-fix-it/" target="_blank">here</a>. </div><div><br /></div><div>NPR News Story - available <a href="https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice " target="_blank">here</a>. </div><div><br /></div><div>Law360 News Story - available <a href="https://www.law360.com/articles/1578138/use-of-plea-bargains-undermining-justice-aba-report-says" target="_blank">here</a>. </div><div><br /></div><div>ABA Journal Story - available <a href="https://www.abajournal.com/web/article/aba-group-issues-14-guiding-principles-to-improve-plea-bargaining-system" target="_blank">here</a>. </div></span></div><span style="font-family: "Times New Roman", serif; font-size: 12pt;"></span><p></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-84450189272394529042022-12-15T11:00:00.022-05:002022-12-15T11:00:00.148-05:00Article Regarding Jails and False Pleas of Guilty<p style="text-align: justify;"><span style="font-family: inherit;">Earlier this week, we announced the creation of the <a href="https://pleabargaininginstitute.fairtrials.org/" target="_blank">Plea Bargaining Institute</a>. Today, we share a recent article from one of the members of the Plea Bargaining Institute's Advisory Board - <a href="https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4402" target="_blank">Rodney Roberts</a>. Mr. Roberts is an exoneree and re-entry coach with the Innocence Project. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The article discusses Mr. Roberts' decision to falsely plead guilty to an offense he had not committed after being given only 25 minutes to make the life altering decision. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">From the piece:</span></p><p><span style="font-family: inherit;"></span></p><blockquote><p style="text-align: justify;"><span style="font-family: inherit;">When I was 24 years old, I was incarcerated in New Jersey’s Essex County jail for a crime I did not commit. For almost a year I was behind bars — charged but not convicted.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">With no money to afford a private attorney, I relied on the counsel of public defenders. Then I was faced with a decision — the most consequential decision of my life — and one that I should never have had to make.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">My attorney told me I could plead guilty to the crime I had been falsely accused of, kidnapping and sexual assault, in exchange for a seven-year prison sentence of which I would possibly end up serving just two years. Or I could fight to prove my innocence at trial and face the prospect of life in prison if I lost. . . .</span></p><p style="text-align: justify;"><span style="font-family: inherit;">I made my decision without being able to consult my family and in the time allotment my public defender gave me: 25 minutes. Because public defenders often have an overflowing docket of clients to see — at the time mine had maybe 70 to 80 cases — he had to move on to the dozens of other incarcerated people he was defending while I made this choice. It was like an assembly line. . . .</span></p><p style="text-align: justify;"><span style="font-family: inherit;">I sat there with tears in my eyes trying to use my best judgment. I accepted the plea agreement. Many people claim they would never, ever plead guilty to a crime they didn’t commit. I thought the same thing until my life was hanging in the balance.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">For my guilty plea, I wound up spending 18 years in custody (including years after prison confined civilly by the state) before DNA evidence excluded me as a perpetrator and I was exonerated and released in 2014.</span></p></blockquote><p><span style="font-family: inherit;"></span></p><p style="text-align: justify;"><span style="font-family: inherit;">You can read the entire article <a href="https://www.nydailynews.com/opinion/ny-oped-because-of-rikers-the-innocent-might-plead-guilty-20221107-cal35wqdmzbppevo5ojaocci4e-story.html" target="_blank">here</a>.</span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-47279285036056379602022-12-13T10:06:00.000-05:002022-12-13T10:06:44.836-05:00Prof. Dervan and Fair Trials Launch Plea Bargaining Institute<p style="text-align: justify;">Criminal justice watchdog <a href="https://www.fairtrials.org/" target="_blank">Fair Trials</a> has partnered with Belmont University College of Law Professor <a href="https://www.belmont.edu/law/facultyadmin/faculty-lucian-dervan.html" target="_blank">Lucian E. Dervan</a> to launch the <i><a href="https://pleabargaininginstitute.fairtrials.org/" target="_blank">Plea Bargaining Institute</a></i> (PBI). Launched today, PBI is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices. </p><p style="text-align: justify;">In the US, 95% or more of criminal cases are resolved through a plea of guilty. When someone pleads guilty they waive their right to a trial, something guaranteed by the U.S. Constitution. While a plea bargain may offer advantages, such as a more lenient sentence, plea bargaining often involves coercive incentives that negatively impacts all defendants’ right to trial. Research indicates that these incentives can be so coercive that even innocent defendants plead guilty. For example, 21% of the cases entered into the National Registry of Exonerations in 2021 involved false pleas of guilty. These pressures to plead guilty may include pressure from police and prosecutors, the imposition of much higher sentences for those who exercise their right to proceed to trial, and other systemic problems including lack of access to a lawyer, long pre-trial detention periods and high court costs. Today, coercive plea bargaining is not limited to the United States as countries around the world adopt this system of adjudication. </p><p style="text-align: justify;">PBI will create opportunities for dialogue that will inspire new and innovative research and analysis, empowering those working to reform plea bargaining to more effectively shape laws, change policy, and transform practice in the United States and internationally. PBI will also work to limit the use of coercive plea bargaining and reform the practice as a whole by engaging in training to instigate sustained alternatives.</p><p style="text-align: justify;">“I am honored to be partnering with Fair Trials and excited for the launch of the Plea Bargaining Institute,” said Professor Dervan. “There is a vital need for an institute that makes important research findings and case developments widely available to those working to reform plea bargaining practices. Simultaneously, there needs to be an organization that creates opportunities for dialogue and collaboration between academics, practitioners and advocacy organizations to assist in identifying new areas for research and inquiry in this field. Today, we launch an institute that will meet these needs and help propel current and future plea bargaining reform efforts.”</p><p style="text-align: justify;">Professor Dervan continued, “For decades, the plea bargaining system operated in the shadows – not well understood, not well regulated and not regularly subjected to robust challenge through litigation. Fortunately, that has begun to change over the last decade with growing research and advocacy. As research endeavors and reform efforts grow there is a vital need for an entity that can create cohesion and communication between the various groups. PBI will provide a global intellectual home for researchers, practitioners, and policy advocates to share knowledge and promote collaboration.” </p><p style="text-align: justify;">Rebecca Shaeffer, Legal Director for Fair Trials Americas, said: “Plea Bargaining has come to all but replace criminal trials in the USA, but there is still insufficient knowledge about its impacts on the justice system and the people subject to it. The Plea Bargaining Institute will advance research in this field and provide an empirical and legal basis for the reforms we know the system needs.”</p><p style="text-align: justify;">PBI will focus on the following initiatives as it begins to create a global intellectual home for plea bargaining research:</p><p style="text-align: justify;"></p><ul><li>Summaries of research and case law developments provided in a searchable online format and in annual reports to make these materials more accessible for use by academics across various fields, policymakers, advocacy organizations and practitioners.</li><li>Working groups for academics, policymakers, advocacy organizations and practitioners to share knowledge and create opportunities for dialogue and collaboration.</li><li>An annual symposium at Belmont University College of Law in Nashville, Tennessee to establish which new areas of research are necessary to bring attention to and reform the plea bargaining system both in the US and around the world.</li></ul><p></p><p style="text-align: justify;">As PBI grows, the project will expand its reach, including providing education and outreach. </p><p style="text-align: justify;">To find out more about the PBI and sign up for updates visit: </p><p style="text-align: justify;"><span> </span>https://pleabargaininginstitute.fairtrials.org/ </p><p style="text-align: justify;">Please be aware that this website is under development, the full site will launch in early 2023.</p><p style="text-align: justify;"><u>The PBI Board of Advisors includes:</u></p><p style="text-align: justify;">Rebecca Brown, <i>Director of Policy, Innocence Project</i></p><p style="text-align: justify;">Cynthia Jones, <i>Professor of Law, Washington College of Law, American University</i></p><p style="text-align: justify;">Abbe David Lowell, <i>Defense Lawyer, Winston & Strawn</i></p><p style="text-align: justify;">Allison Redlich, <i>University Professor, Department of Criminology, Law and Society, George Mason University</i></p><p style="text-align: justify;">Jenny Roberts, <i>Professor of Law, Washington College of Law, American University</i></p><p style="text-align: justify;">Rodney Roberts, <i>Activist and Exoneree</i></p><p style="text-align: justify;">Cynthia Roseberry, <i>Acting Director, ACLU Justice Division, ACLU</i></p><p style="text-align: justify;">Martin Sabelli, <i>Defense Lawyer and Immediate Past President of the National Association of Criminal Defense Lawyers, Law Offices of Martin A. Sabelli</i></p><p style="text-align: justify;">Abbe Smith, <i>Director, Criminal Defense and Prisoner Advocacy Clinic, Georgetown University Law Center</i></p><p style="text-align: justify;">You can find the entire press release on the Fair Trials website <a href="https://www.fairtrials.org/articles/news/plea-bargaining-institute-launched/" target="_blank">here</a>.</p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-80066253406824264672022-12-12T16:01:00.000-05:002022-12-12T16:01:16.857-05:00Eastern District of New York Recognizes Impact of Sentencing Differentials<p style="text-align: justify;"><span style="font-family: inherit;">In an opinion issued in late November 2022, Senior Judge Frederic Block of the U.S. District Court for the Eastern District of New York discussed the impact of disparities between sentences of co-defendants based on their decisions to exercise their constitutional right to trial when finding extraordinary and compelling grounds for a sentence reduction. The case involved two defendants seeking reduced sentences on compassionate grounds under the First Step Act. In granting the first defendant's motion, the court wrote:</span></p><p></p><blockquote><p style="text-align: justify;"><span style="font-family: inherit;">Courts have found that a gross disparity between sentences of co-defendants stemming from their choice to exercise or forgo their constitutional right to a trial is an extraordinary and compelling factor. See United States v. Ballard, 552 F. Supp. 3d 461, 468 (S.D.N.Y. 2021) (finding that a drastic sentencing disparity between co-defendants, which resulted in part from the fact that Ballard opted to exercise his right to trial when his co-defendant accepted a plea deal, supported a determination that extraordinary and compelling circumstances warranted a reduction of the defendant's sentence); see also United States v. Haynes, 456 F. Supp. 3d 496, 514 (E.D.N.Y. 2020) (“The Court readily concludes, on the facts as detailed above—including the brutal impact of Haynes's original sentence, its drastic severity as compared to codefendant Rivers's ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes's exercise of his constitutional right to trial—... [constitute] an extraordinary and compelling circumstance warranting relief under § 3582(c).”).</span></p><p style="text-align: justify;"><span style="font-family: inherit;">Russo exercised his constitutional right to trial. Of Russo's fourteen co-defendants, seven went to trial. Six received mandatory life sentences under the then-mandatory sentencing guidelines. The seventh was acquitted.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">In contrast, the remaining co-defendants received sentences ranging from time-served, equating to approximately four years, to 270 months. The offense conduct of these defendants, although ultimately charged differently by the government than those defendants who proceeded to trial, was no less violent or destructive than those who received life sentences. For example, co-defendant Theodore Persico pleaded guilty for charges including conspiracy to commit murder and received a sentence of 270 months. Co-defendant Richard Fusco received a sentence of 168 months after pleading guilty. He was originally charged with conspiracy to commit murder.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">This disparity does not reflect the goals of sentencing. And, while the government's argument that accepting responsibility for one's crimes should result in a lower sentence is well taken, it is often disproportionately reflected in how co-defendants are charged and sentenced. Thus, this disparity in sentencing also weighs toward a finding of extraordinary and compelling circumstances.</span></p></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">For the complete opinion, <i>see </i>United States v. Russo et al., Case No. 92-CR-351, Case No. 90-CR-1063, E.D.N.Y. (November 28, 2022).</span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-24244696175954647552022-09-23T15:00:00.011-04:002022-09-23T15:00:00.177-04:00Federal Legislation Regarding the Trial Penalty and Mandatory Minimums<p style="text-align: justify;"><span style="font-family: inherit;">Earlier this year, several members of Congress introduced a bill aimed at adding additional statutory protections for the Constitutional Right to Trial. Entitled the "<a href="https://www.law.cornell.edu/uscode/text/18/3553" target="_blank">Right to Trial Act</a>," the legislation would require Judges during sentencing to consider whether an increased sentence was threatened or imposed based on a decision by the defendant to proceed to trial. The legislation would also require judges during sentencing to consider the plea offers and sentences received by co-defendants or similarly situated defendants who plead guilty instead of preceding to trial. Finally, the bill proposes that judges have the discretion to impose a sentence below an established statutory minimum if necessary to protect the constitutional right to trial. </span></p><p style="text-align: justify;">Requiring judges to consider the impact of sentencing differentials when arriving at an appropriate sentence after conviction at trial and creating a safety-valve to help protect against the use of mandatory minimum statutes to coerce pleas of guilty are much needed steps forward in creating a more transparent criminal justice system and helping ensure that defendants are not being punished more harshly simply because they have chosen to exercise one of our most fundamental constitutional rights - the right to trial. This will be an important bill to monitor as it makes its way through Congress.</p><p style="text-align: justify;"><span style="font-family: inherit;">Excerpts from the bill are below:</span></p><div class="deep-link" style="align-items: center; background-color: white; color: #333333; position: relative;" tabindex="0"><p class="lbexIndentParagraph H38659B6287B44E56B185708C388E0A16-content" style="margin: 0px 30px 1.25rem 2em; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">“(8) the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer;</span></p></div><div class="deep-link" style="align-items: center; background-color: white; color: #333333; position: relative;" tabindex="0"><p class="lbexIndentParagraph H104A7043265B4ED6A359F99AC89BCD2D-content" style="margin: 0px 30px 1.25rem 2em; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">“(9) in the case of—<a id="HDE626112FEEE46F481ED7589346DEA95" style="background-color: transparent; color: #3366cc; text-decoration-line: underline;"></a></span></p><p class="lbexIndentSubpar H104A7043265B4ED6A359F99AC89BCD2D-content" style="margin: 0px 30px 1.25rem 4em; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">“(A) crimes involving similarly situated codefendants or group conduct, the plea offer, if applicable, and each sentence (and anticipated sentence) of any similarly situated codefendant or similarly situated other person charged in the same or related offense who pled guilty; and</span></p></div><div class="deep-link" style="align-items: center; background-color: white; color: #333333; position: relative;" tabindex="0"><p class="lbexIndentSubpar HCDDB5602E43240C7AFCB969BCA813BB6-content" style="margin: 0px 30px 1.25rem 4em; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">“(B) crimes not involving codefendants or group conduct, the plea agreements and the sentences for similarly situated defendants who pled guilty to similar offenses; and</span></p></div><div class="deep-link" style="align-items: center; background-color: white; color: #333333; position: relative;" tabindex="0"><p class="lbexIndentParagraph H77B4E163AB5A4C64A53067FBD4159019-content" style="margin: 0px 30px 1.25rem 2em; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">“(10) whether imposition of a statutory minimum sentence would constitute a penalty for asserting the constitutional right to a trial, thereby warranting imposition of a sentence below the statutory minimum.”.</span></p><a class="deep-link-button" href="https://www.congress.gov/bill/117th-congress/house-bill/8092/text?r=10&s=1#" id="dlcl" style="background: rgb(28, 74, 112); border: 3px solid rgb(28, 74, 112); color: rgb(255, 255, 255) !important; display: inline; font-weight: bold; position: absolute; right: -44px; text-align: justify; text-decoration-line: none; top: 21.3125px; transform: translate(0px, -50%); width: 35px; z-index: 2;"><span style="font-family: inherit;"><span class="fas fa-link" style="-webkit-font-smoothing: antialiased; display: inline; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: 1; text-rendering: auto;"></span></span></a></div><p><span style="font-family: inherit;"><a id="H104A7043265B4ED6A359F99AC89BCD2D" style="background-color: white; color: #3366cc; text-decoration-line: underline;"></a><a id="HCDDB5602E43240C7AFCB969BCA813BB6" style="background-color: white; color: #3366cc; text-decoration-line: underline;"></a><a id="H77B4E163AB5A4C64A53067FBD4159019" style="background-color: white; color: #3366cc; text-decoration-line: underline;"></a><a id="H29494A79450C482EB0C4266911AB93AA" style="background-color: white; color: #3366cc; text-decoration-line: underline;"></a></span></p><div class="deep-link" style="align-items: center; background-color: white; color: #333333; position: relative;" tabindex="0"><p class="lbexIndent H29494A79450C482EB0C4266911AB93AA-content" style="margin: 0px 30px 1.25rem 0px; position: relative; text-align: justify; text-indent: 2em; z-index: 10;"><span style="font-family: inherit;">(b) <span class="lbexSectionLevelOLCnuclear" style="font-variant-caps: small-caps; font-variant-east-asian: normal; font-variant-numeric: normal; letter-spacing: 1pt; text-transform: capitalize; word-spacing: 2pt;">Authority</span>.—Section 3553(e) of title 18, United States Code, is amended by inserting after “committed an offense.” the following: “The court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial.”.</span></p></div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-7194959866661064272022-02-03T12:13:00.004-05:002022-02-03T12:13:33.256-05:00New Reports on Global Plea Bargaining from Fair Trials<div style="text-align: justify;"><span style="font-family: inherit;"><a href="https://www.fairtrials.org/" target="_blank">Fair Trials</a>, an organization that campaigns "on issues that threaten the right to a fair trial or reinforce discrimination and inequality in criminal justice," has released two new reports regarding plea bargaining around the world.</span></div><div style="text-align: justify;"><span style="font-family: inherit;"><br /></span></div><div style="text-align: justify;"><span style="font-family: inherit;">The first report, "<i>Efficiency over justice: Insights into trial waiver systems in Europe</i>," was released in December 2021. From the executive summary:</span></div><div></div><blockquote><div style="text-align: justify;"><span style="font-family: inherit;">Criminal punishment is increasingly imposed without a trial but instead through
a trial waiver system or other alternative disposition systems that fall short of
a trial (including penal orders and fast track proceedings). A recent report by
the European Commission for the Efficiency of Justice, noted that in 2016, in
the majority of Council of Europe member states, about 50% of criminal cases
were processed before courts; the rest resulted in a sanction or measure
imposed or negotiated by prosecutors. It is likely that the share of criminal cases
processed out of courts will increase in the future. This shift in how criminal
cases are processed requires research to understand the implications that such
case resolution mechanisms have on the rights of the accused, but also on the
integrity of the criminal justice system as a whole.</span></div><div style="text-align: justify;"><span style="font-family: inherit;">. . .</span></div><div style="text-align: justify;"><span style="font-family: inherit;">The report highlights four trends that are generally common to criminal justice
systems across Europe. These trends are key to understanding the rise of trial
waiver systems and the reasons for their shortcomings. First, criminal justice
systems are overburdened and suffering from court delays and backlogs. This
saturation is not only due to a lack of resources, but also caused by the constant
and increasing recourse to criminal law and punishment to address social harm.
This contributes to the second trend of overcriminalisation and overpunishment.
Third, states continue to have excessive recourse to pre-trial detention leading
to prison overpopulation and inhumane detention conditions. The fourth trend
is symptomatic of all the others. States are looking at cost-efficient policies to
deal with overburdened systems. This explains the rise of trial waiver systems as
a star tool available to prosecutors throughout Europe to resolve criminal cases
quickly and cheaply.</span></div></blockquote><div></div><div style="text-align: justify;"><span style="font-family: inherit;">The report examines these issues and makes several recommendations related to structural reforms, data collection and research, enhanced procedural rights, effective judicial oversight, and increased accountability. The report is available <a href="https://www.fairtrials.org/articles/publications/efficiency-over-justice/" target="_blank">here</a>. An opinion piece regarding the report also appeared in the <a href="https://euobserver.com/opinion/154134" target="_blank">EU Observer</a>. </span></div><div style="text-align: justify;"><span style="font-family: inherit;"><br /></span></div><div style="text-align: justify;"><span style="font-family: inherit;">The second report, "<i>Trial waiver systems: A guide for policy makers</i>," was released in January 2022. From the introduction. </span></div><div></div><blockquote><div style="text-align: justify;"><span style="font-family: inherit;">A recent report by the European Commission for the Efficiency of Justice (CEPEJ),
details that in 2016, approximately 42% of the total number of criminal cases4 were
discontinued by prosecutors, 28% were processed before courts and “27% resulted in a
penalty or measure imposed or negotiated by the prosecutor”.5 In other words, about 50%
of all criminal cases that proceed are processed outside the framework of a trial.
This strive for efficiency has become the main driver of change for modern criminal
justice systems.6 A well-functioning criminal justice system is in the interest of all actors,
including suspected and accused persons. However, the pursuit of efficiency cannot be
limited to considerations of cost and fast resolutions. There is concern that efficiency is
achieved by bypassing the fundamental rights of suspected and accused people.7 While
it is the duty of states to improve the situation of the judiciary or adjust it accordingly in
order to cope with backlogs, cost-efficiency driven reforms should not place a
disproportionate burden on suspected and accused persons, and the priority should
always be given to protecting rights and respecting the rule of law.</span></div><div style="text-align: justify;"><span style="font-family: inherit;">. . . </span></div><div style="text-align: justify;"><span style="font-family: inherit;">This guide provides an overview of the risks associated with trial waiver systems
identified in our research (I) and guidance on how to mitigate these risks, including
through research and impact assessment (II); structural reform limiting the incentives to
waiver the right to a trial (III); the implementation and adaptation of procedural
safeguards to the trial waiver context (IV); effective judicial oversight over trial waiver
systems (V) and increase oversight over prosecutorial powers through the development
of public prosecutorial guidelines (VI). </span></div></blockquote><div></div><div style="text-align: justify;"><span style="font-family: inherit;">The report is available <a href="https://www.fairtrials.org/articles/publications/trial-waiver-systems-a-guide-for-policy-makers/" target="_blank">here</a>. </span></div><div style="text-align: justify;"><span style="font-family: inherit;"><br /></span></div><div><div style="text-align: justify;">The issue of efficiency and the manner in which plea bargaining sacrifices accuracy in favor of efficiency is vitally important to our discussions around plea bargaining reform. In my 2018 article "<i>Class v. United States: Bargained Justice and a System of Efficiencies</i>," I ended with the following. </div><div><blockquote style="text-align: justify;">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 [by the Supreme Court in future decisions], I do think they are the concerns to which a deep examination of plea bargaining must eventually lead us—and the Court.</blockquote></div><div>The <i>Class v. </i>Unit<i style="font-family: inherit;">ed States</i><span style="font-family: inherit;"> article is available for free download </span><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293868" style="font-family: inherit;" target="_blank">here</a><span style="font-family: inherit;">. </span></div></div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-20987051701976399212021-08-19T13:04:00.002-04:002021-08-19T13:04:54.023-04:00New Law & Psychology Blog - The (In)Justice System Blog<p style="text-align: justify;">There is a new blog on <a href="https://www.psychologytoday.com/us" target="_blank">Psychology Today</a> that readers will find a valuable resource. The blog, called the <a href="https://www.psychologytoday.com/us/blog/injustice-system" target="_blank">(In)Justice System</a>, describes itself as "Empirically evaluating today's criminal justice system and avenues for reform." The blog is authored by <a href="https://www.uml.edu/fahss/psychology/faculty/wilford-miko.aspx" target="_blank">Dr. Miko Wilford</a> of the University of Massachusetts Lowell. Dr. Wilford is an award winning and prolific scholar who conducts research in various areas of the criminal system, including plea bargaining. In fact, I believe this new blog will focus much of its attention on our current system of bargains.</p><p style="text-align: justify;">The first blog entry from the (In)Justice System blog is entitled "<a href="https://www.psychologytoday.com/us/blog/injustice-system/202108/avoiding-jury-duty-could-be-thing-the-past" target="_blank">Avoiding Jury Duty Could Be a Thing of the Past</a>." The entry focuses on the disappearing trial and the rise of plea bargaining. After introducing the reader to the right to trial and the impact of plea bargains on trial rates, Dr. Wilford discusses some of the many negative consequences of a system domi<span style="font-family: inherit;">nated by pleas. In particular, the entry discusses the risk of false confessions and the use of the trial penalty to increase the sentence of those who refuse to bargain. From the blog:</span></p><p><span style="font-family: inherit;"></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">Even defendants who refuse to plead guilty are still affected by the plea system. To incentivize pleading guilty, the cost of going to trial has increased dramatically. It now seems clear that criminal defendants are being punished for exercising their constitutional right to a jury trial.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Congratulations to Dr. Wilford on the new blog. The (In)Justice System blog will be a great resource for empirical data and information on the criminal system. </span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-49004456872321744612021-07-19T12:14:00.000-04:002021-07-19T12:14:31.396-04:00New Plea Bargaining Articles re the Impact of COVID-19<p style="text-align: justify;"><span style="font-family: inherit;">Two new articles have been released discussing the impact of COVID-19 on the plea bargaining system. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The first is by Professors Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland, entitled <i>Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic</i>. From the abstract:</span></p><p><span style="background-color: white;"><span style="font-family: inherit;"></span></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">Over 95% of criminal convictions in the United States are the result of guilty pleas. Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible. Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty. The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention. While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19 weighed more heavily on the innocent than the guilty. These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail—a guilty plea. </span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">The article appears in the <u>Journal of Experimental Psychology Applied</u>, available <a href="https://psycnet.apa.org/record/2021-55856-001" target="_blank">here</a>. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The second is by Professors Tarika Daftary-Kapur, Kelsey Henderson, and Tina Zottoli, entitled <i>COVID-19 Exacerbates Existing System Factors that Disadvantage Defendants: Findings From a National Survey of Defense Attorneys</i>. From the abstract:</span></p><p><span style="background-color: white;"><span style="font-family: inherit;"></span></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys’ perceptions of whether and how the plea process has changed during the COVID-19 pandemic. Hypotheses: This study was exploratory, and we made no a priori hypotheses. Method: We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. Results: The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. Conclusions: The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">The article appears in <u>Law and Human Behavior</u>, available <a href="https://psycnet.apa.org/record/2021-54191-001" target="_blank">here</a>.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">Earlier this year, Professor Thea Johnson of Rutgers released an article on plea bargaining and COVID-19 in <a href="https://jclc.law.northwestern.edu/jclc-online/all-online-articles/" target="_blank">The Journal of Criminal Law & Criminology Online</a>. From the abstract:</span></p><p><span style="background-color: white; font-family: inherit;"></span></p><blockquote><div style="font-family: inherit; text-align: justify;"><span style="background-color: white; font-family: inherit;">A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky. Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.</span></div><div style="text-align: justify;"><br /></div><span style="background-color: white; font-family: inherit;"><div style="text-align: justify;"><span style="font-family: inherit;">The first part of this Article is descriptive, exploring how and why actors in the criminal justice system – including defendants, prosecutors and judges – use fictional plea for the purposes of avoiding collateral consequences. This Article proposes that in any individual case, a fictional plea may embody a fair and just result – the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.</span></div></span><div style="text-align: justify;"><br /></div><span style="background-color: white; font-family: inherit;"><div style="text-align: justify;"><span style="font-family: inherit;">But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process – namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process. In this sense, fictional pleas serve as a case study in criminal justice problem solving. Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution. The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself. Rather than a grounding principle, truth is nothing more than another factor to negotiate around.</span></div></span></blockquote><span style="background-color: white; font-family: inherit;"></span><p></p><p style="text-align: justify;"><span style="font-family: inherit;">This article can be found <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3273691" target="_blank">here</a>. The Journal of Criminal Law and Criminology Online contains a number of COVID-19 related articles, including additional pieces regarding COVID-19 and plea bargaining. </span></p><p style="text-align: justify;">These three articles are important reads for those interested in learning about the ways in which COVID-19 has impacted the plea bargaining system over the last year and a half. </p><p style="text-align: justify;"><br /></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-85422465274607709622021-07-16T16:14:00.000-04:002021-07-16T16:14:22.072-04:00The New York Times Magazine - I Write About the Law. But Could I Really Help Free a Prisoner? by Emily Bazelon<p style="text-align: justify;"><span style="font-family: inherit;">Emily Bazelon has an excellent article in <a href="https://www.nytimes.com/2021/06/30/magazine/yutico-briley.html" target="_blank">The New York Times Magazine</a> that readers will enjoy. The article details how she and her sister, Lara Bazelon, worked to exonerate Yutico Briley. Terry Gross described the events as follows on FRESH AIR. </span></p><blockquote><div style="text-align: justify;"><span style="font-family: inherit;">While serving a 60-year sentence with no possibility of parole for an armed robbery in New Orleans that he insisted he didn't commit, Yutico Briley wrote dozens of letters to lawyers, innocence projects and anyone he thought could help him get out of prison. In 2019, after seven years in prison, he heard my guest Emily Bazelon interviewed on FRESH AIR. We were talking about her book "Charged," about how prosecutors had gained breathtaking power in the past 40 years and used it to put more people in prison, ripping apart poor communities, mostly Black or brown. Briley wrote to her, but she didn't even read his letter until a couple of months later when a librarian in Oregon, who corresponded with Briley through a support program for incarcerated people, got in touch with Bazelon, saying, Briley was trying to contact her. Bazelon found Briley's letter, began corresponding with him and became convinced his case was worth looking into.</span></div><div style="text-align: justify;"><br /></div><span style="font-family: inherit;"><div style="text-align: justify;"><span style="font-family: inherit;">She contacted several lawyers, who declined to represent him, so s</span><span style="font-family: inherit;">he tried her sister Lara Bazelon, a professor of law at the University of San Francisco, where she runs a criminal justice clinic. Lara took on the case, and with the help of her students, a private detective and Emily, she was able to appeal Briley's case. He was exonerated in March. </span></div></span></blockquote><p style="text-align: justify;"><span style="font-family: inherit;">The article in the NYT Magazine details the case and reflects on the criminal justice system and the many ways that it failed in this case. In particular, the piece contains a detailed discussion of the unreliability of eyewitness identifications. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">Though Briley was convicted at trial, there is also an interesting discussion of plea bargaining in the piece. Shortly before trial, Briley was offered 12 years in prison in return for pleading guilty. Of the deal, Briley's father said, "Even though Yutico was adamant that he didn't do it, going to trial was too risky to risk your life on." Briley did go to trial, and received a trial penalty of an additional 48 years in prison for exercising his constitutional right to trial. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The article is available <a href="https://www.nytimes.com/2021/06/30/magazine/yutico-briley.html" target="_blank">here</a>, and the FRESH AIR interview with Emily Bazelon and Yutico Briley is available <a href="https://www.npr.org/2021/07/08/1014175519/an-innocent-man-walks-free-from-a-60-year-sentence-with-help-from-a-journalist" target="_blank">here</a>.</span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-44023077112399893132021-06-17T15:31:00.000-04:002021-06-17T15:31:38.625-04:00New Piece on Plea Bargaining and the Psychology of False Pleas and False Testimony<div style="text-align: justify;">I recently published a new article discussing plea bargaining and some of the insights that have been gained from psychological research into defendant decision-making in recent years. From the abstract for the piece:</div><blockquote style="text-align: justify;">Plea bargaining is an institution that has come to dominate the American criminal justice system. While little psychological research was done in the decades following the 1970 Supreme Court decision that approved the practice of plea bargaining, many advances have been made in this field in the last decade. We now know, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain. Further, we know that the presence of counsel can actually increase, not decrease, the prevalence of false pleas of guilty. We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent. Finally, we know that defendants will not only falsely plead guilty, but that they will also falsely testify against a co-defendant in return for the benefits of the deal. This piece examines each of these findings and considers what this research means for the future of bargained justice.</blockquote><div style="text-align: justify;">The article was published in the <a href="https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021/index.php#/p/1" target="_blank">For the Defense</a> magazine. A free copy of the article is available for download <a href="https://www.blogger.com/#">here</a>.</div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-4108822725127398302021-03-31T15:58:00.004-04:002023-11-09T12:16:24.230-05:00The History and Psychology of Plea Bargaining and the Trial Penalty<div style="text-align: justify;">In 2019, the Federal Sentencing Reporter published a special two volume collection on plea bargaining and the trial penalty. You can review the table of contents from the volumes on the journal's <a href="https://online.ucpress.edu/fsr/issue/31/4-5">website</a>. It is a wonderful collection of pieces exploring this issue from various perspectives. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As part of the collection, I was invited to write about the history of plea bargaining and the issue of innocence in a piece entitled, Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, 31 Federal Sentencing Reporter 239-247 (2019). A draft of this article is now available on SSRN.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Article's Abstract:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This article beings with an examination of the historical rise of plea bargaining and discusses how bargained justice emerged from a deep common law tradition that had rejected the use of incentives to induce confessions of guilt. This introduction to the subject concludes by considering the language used by the Supreme Court in 1970 to diverge from these past precedents and approve of bargains, including a Justice’s words of caution regarding innocence. The article then delves into plea bargaining’s innocence issue more squarely and considers how the incentives offered to defendants impact the accuracy and reliability of guilty pleas. This discussion includes examination of the complex psychological forces at play within defendant decision-making, the significant advances that have been achieved in the law and psychology discipline during recent years, and what this means about the Supreme Court’s words regarding innocence in 1970. Finally, the article concludes by considering the Supreme Court’s recent plea bargaining jurisprudence and contemplates where our system of justice might be heading next.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Download the entire article <a href="https://online.ucpress.edu/fsr/issue/31/4-5" target="_blank">here</a>. </div><div><p style="text-align: justify;"><span style="background-color: white;"><span style="font-family: inherit;"></span></span></p></div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-24757366025217916912021-03-29T18:13:00.001-04:002021-03-29T18:13:31.252-04:00Report Regarding Guilty Pleas in England and Wales<p style="text-align: justify;">A recent report by the <a href="https://sentencingacademy.org.uk/2020/12/sentence-reductions-for-guilty-pleas-a-review-of-policy-practice-and-research/" target="_blank">Sentencing Academy</a> regarding pleas of guilty in England and Wales contains interesting information regarding the practice of plea bargaining across the pond. From the report:</p><p></p><blockquote style="text-align: justify;">Most defendants are convicted after entering a guilty plea, rather than following a trial. In 2019/20,
78.6% of cases concluded in the magistrates’ courts were resolved by a guilty plea (Crown
Prosecution Service, 2020, p. 31). The figure was slightly lower (73.3%) in the Crown Court (Crown
Prosecution Service, 2020, p. 34). Defendants plead guilty for a variety of reasons. For example,
some may experience remorse and express this through a guilty plea. Many defendants perceive a
high likelihood of being convicted at trial and wish to secu<span style="font-family: inherit;">re the reduced sentence available if they
plead guilty. Others may plead guilty to avoid the stress arising from going to trial (Gormley and Tata
2020). </span></blockquote><p style="text-align: justify;"><span style="font-family: inherit;">While not as high as U.S. guilty plea rates (which can reach almost 98% at the federal level), these are high numbers for a country where the court once wrote, “[A]
confession forced from the mind by the flattery of hope, or by the torture of
fear, comes in so questionable a shape… that no credit ought to be given to it.” See <i><span style="line-height: 115%;">Rex v. Warickshall</span></i><span style="line-height: 115%;">, 1783. </span>The executive summary offers some perspectives of why pleas of guilty are now encouraged under the laws of England and Wales. </span></p><p></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">Two principal justifications currently exist for offering sentence reductions to defendants who plead
guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may requir</span>e
multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered
early in the criminal process, conserves criminal justice system resources. The police, the Crown
Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea
may be considered evidence of remorse on the part of defendants, but this factor is considered
elsewhere in the sentencing methodology.</blockquote><p></p><p style="text-align: justify;">The executive summary also describes the manner in which England and Wales have created a structured sliding scale of reductions based on the efficiency considerations described above. </p><p></p><blockquote style="text-align: justify;">The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract
a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a
sentence reduction of one-third of the custodial sentence should be awarded. The guideline also
specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after
the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease
to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the
recommended reductions. These allow a departure from the recommended maximum reductions. For
example, if there were circumstances which significantly affected the defendant’s ability to understand
what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate
a guilty plea sooner. In addition, there is a separate regime for young defendants.</blockquote><p></p><p style="text-align: justify;">Finally, the report also briefly explores the issue of innocence and argues that the risks are low because the sentencing differentials in England and Wales are "modest."</p><p></p><blockquote><p style="text-align: justify;">As long as it is possible to plead guilty, there is a risk that any defendant (even if innocent) may do
so, and this risk is much discussed in the academic literature (e.g. Ashworth 2015, p. 182).33 This risk
increases if sentence reductions are significant. This underscores the need to ensure that
defendants have access to legal representation which should serve as a safeguard – although it is
not necessarily always guaranteed (McConville et al. 1994).</p><p style="text-align: justify;">It is unclear what form of evidence would resolve the question of whether current levels of
reduction are excessive. In many cases, the impact of the sentence reduction on time served in
prison will be modest, thereby reducing the risks of innocent defendants pleading guilty simply to
obtain the sentence reduction. A concrete example illustrates the point. A defendant who pleads
after the first opportunity but before the day of trial is entitled to a maximum reduction of one quarter of the custodial sentence. Assuming an eight-month sentence without a plea, the sentence
after a plea will be six months, half of which will be served in prison. The guilty plea reduces the
offender’s time in prison by one month: they will serve three months instead of four. The question
then is whether these levels of reduction create sufficient pressure on the defendant to plead guilty
if he or she has a defence to the charge. Of course, the attraction of a reduction in time served does not speak to the possibility that defendants who perceive a guilty plea may result in their avoiding a
prison sentence altogether (discussed later in this paper). </p><p style="text-align: justify;">Research involving offenders reported by the Sentencing Council suggests that the magnitude of the
reductions offered were not a significant factor affecting their decision to plead. The report notes
that: ‘The main factor determining whether or not offenders plead guilty was the likelihood of being
found guilty at trial’ (Dawes et al., 2011 p. 32). Although the research involved only a small number
of defendants, this suggests that it is the likelihood of conviction rather than the magnitude of
reduction following a guilty plea that was the primary determinant in the decision to plead guilty.
However, the data are far from robust on this question and more (and more up to date) research is
needed.
</p></blockquote><p></p><p style="text-align: justify;">While the above described sentencing differential is certainly smaller than many of the incentives present in the U.S. system, I wonder whether this captures all of the incentives that are actually available and being offered in England and Wales. My <a href="http://thepleabargainingblog.blogspot.com/2021/02/dervan-publishes-new-research-re-false.html" target="_blank">recent piece</a> examining plea bargaining systems in several countries noted that many countries have extensive shadow bargaining systems with little or no transparency. One must wonder what other incentives may be operating outside of the above described regulated system that might be further increasing the size of the actual sentencing differentials. As the authors note, there is a need for more research to see how the systems in England and Wales are operating, and I hope that any such research would include updated examination of this issue.</p><p style="text-align: justify;">The full report is available for review <a href="https://secureservercdn.net/160.153.138.71/1v6.c22.myftpupload.com/wp-content/uploads/2020/12/Sentence-Reductions-for-Guilty-Pleas.pdf" target="_blank">here</a>. </p><p></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-80066545934572078002021-03-17T13:36:00.001-04:002021-03-17T13:49:40.007-04:00ABA Criminal Justice Section Plea Bargaining Task Force - Call for Comment<p> </p><p align="center" class="xmsonormal" style="text-align: center;"><b><u>Call for
Comment</u></b><b> </b></p>
<p align="center" class="xmsonormal" style="text-align: center;"><b>American Bar
Association Criminal Justice Section</b><span style="font-family: "Calibri",sans-serif; font-size: 11.0pt;"><o:p></o:p></span></p>
<p align="center" class="xmsonormal" style="text-align: center;"><b>Plea Bargaining
Task Force</b></p>
<p class="xmsonormal">The American Bar Association Criminal Justice Section has
created a task force to more closely examine the role of plea bargaining in our
modern system of criminal justice. Its goal is to develop both broad
policy oriented goals for the criminal justice system and, where necessary,
specific recommendations for changes in the way plea bargaining operates within
the larger criminal justice environment. These issues will be
examined from the perspective of all those involved in the criminal justice
system, including prosecutors, defenders, defendants, judges, victims, and
others.</p>
<p class="xmsonormal">To date, the task force has had the opportunity to hear
from a number of advocacy groups, researchers, and policy makers regarding the
benefits of the plea bargaining system, the negative consequences resulting
from our reliance on plea bargaining and the current structure of the plea
bargaining system, and potential reforms and paths forward. To ensure
that as wide a possible audience is able to voice concerns, perspectives, and ideas
about the plea bargaining system as the task force begins drafting its report
and recommendations, we encourage those interested to provide written comments
to us.</p>
<p class="xmsonormal">Comments should be in written form and should be submitted
to the Task Force’s Reporter, Professor Thea Johnson (<span style="color: #1f497d; font-size: 11.0pt;"><a href="mailto:thea.johnson@rutgers.edu">thea.johnson@rutgers.edu</a></span>)
by April 15, 2021. Written comments may address any aspect of the plea bargaining
system that the drafter believes will assist the committee in its work.
Please note that the task force intends to create a publicly accessible website
with information about the work of the task force, the task force’s report,
materials from the presentations that were made before the task force, and
materials submitted for the task force’s consideration. We hope that this
repository will be a valuable tool for those interested in plea
bargaining. As a result, please note that your submitted comments,
including the identity of the submitting individual(s) or organization(s), are
not confidential and may (at our sole discretion and without further
permission) appear in this public forum. Reference to and quotations from
comments received, including the identity of the author(s), may also (at our
sole discretion and without further permission) appear in the official report
of the committee.</p>
<p class="xmsonormal">We hope those interested in these topics will consider
participating in this opportunity for comment.</p>
<p class="xmsonormal">Sincerely,</p>
<p class="xmsonormal">The ABA Criminal Justice Section Plea Bargaining Task Force<span style="font-family: "Calibri",sans-serif; font-size: 11.0pt;"><o:p></o:p></span></p><p class="xmsonormal"><br /></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-10071306217385859012021-02-13T13:11:00.000-05:002021-02-13T13:11:04.025-05:00Dervan Publishes New Research re False Testimony and False Pleas by the Innocent in the U.S., Japan and S. Korea<div style="text-align: justify;">Several years ago, Japan passed a new law that allowed the use of formal plea bargaining for the first time. Key to the law was a provision that attempted to limit the risk of false pleas by the innocent by requiring that those pleading guilty provide information about a crime committed by a third party. This prevented the type of single defendant plea bargains that are so common in the United States. At the same time, South Korea continued to debate whether they should follow a similar path and permit the use of plea bargaining. All the while, bargained justice continued to dominate the U.S. criminal justice system.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The new legislation in Japan and discussions in South Korea led to the creation of a collaborative research study that brought together scholars from the United States, Japan, and South Korea to examine the innocence issue from a global perspective and test through psychological deception studies whether Japan's attempts to prevent false pleas of guilty would be effective.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">We have now published our first paper related to this study, which is available for free download <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768687" target="_blank">here</a>. </div><div style="text-align: justify;"><br /></div><div><div style="text-align: center;"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768687" target="_blank"><i>Bargained Justice: The Rise of False Testimony for False Pleas</i></a></div><div style="text-align: center;"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768687" target="_blank">Andrew M. Pardieck, Vanessa A. Edkins, and Lucian E. Dervan</a></div><div style="text-align: center;"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768687" target="_blank">44 Fordham International Law Journal 469 (2020)</a></div><div style="text-align: center;"><br /></div><div style="text-align: justify;">Our findings reveal that false pleas of guilty and the innocent defendant’s dilemma are global phenomena. Further, as mentioned above, we also collected new data regarding the accuracy of testimony offered against third parties in the plea bargaining context. The results of this research may surprise some in the legal community and calls into question the validity and the accuracy of the testimony by those accepting bargains. Our data indicates that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves. This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems, and the first time laboratory research has established the presence of the phenomenon of false testimony in return for the benefits of a plea bargain.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Below is the full abstract for the piece. I hope you will take a moment to download the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768687" target="_blank">full article</a> and read about our statistical findings of false pleas by the innocent and the willingness of participants to falsely testify against others in return for these bargains. </div><div style="text-align: justify;"><br /></div><u><div style="text-align: justify;"><u>Abstract</u></div></u><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent. The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain. Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves. This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems. It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain. The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.</div></div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-48952746251411080412020-12-29T13:57:00.001-05:002020-12-29T13:57:12.940-05:00New Article re Carlos Ghosn Case Includes Discussion of Plea Bargaining<p style="text-align: justify;">The <a href="https://apjjf.org/2020/24/AronsonJohnson.html" target="_blank">Asia-Pacific Journal</a> has published a piece discussing the Carlos Ghosn case. While the entire investigation, prosecution, and flight from Japanese authorities is interesting, this particular piece also contains discussion of plea bargaining. As noted in the article, the prosecution of Ghosn stems, at least in part, from two Nissan employees reporting his alleged misconduct in hopes of receiving leniency under Japan's relatively new plea bargaining law. The piece goes on to compare criminal laws and procedures in Japan and the United States, including the use of pressure to induce admissions. From the article:</p><blockquote><div style="text-align: justify;">Another striking similarity between Japan and the U.S. concerns the use of pressure to produce admissions of guilt. In both countries, protections for defendants on trial are relatively robust, but in the pretrial process much pressure is brought to bear on suspects to help the state obtain convictions...</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Interrogation in Japan has been the subject of much good research in English (Foote, 1991; Miyazawa, 1992; Foote, 1993; Takano, 2019). Recent reforms require the electronic recording of interrogations in a limited range of cases, but even in those cases “the problem of the overborne will” that has long plagued criminal justice in Japan has not been eliminated (Johnson, 2002, ch.8). In the U.S., pressure is routinely employed in plea bargaining, by threatening to impose a large “trial tax” on defendants who have the temerity to exercise their right to trial – and who then get convicted (Langbein, 1978; Fisher, 2003; Burns, 2009; Lynch, 2016). Many commentators either do not know about the size of trial penalties or deny their coercive effects, but some observers are clear about this American problem (Rakoff, 2014). As former Chief Judge William G. Young of the Federal District Court of Massachusetts put it in U.S. v Richard Green et al (2004): </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Evidence of sentencing disparity [trial penalty] visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that disparity has widened to an incredible 500 percent [this means the punishment after conviction at trial is five times the punishment prosecutors offered in plea bargaining]…Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people—punish them severely—simply for going to trial. It is the sheerest sophistry to pretend otherwise.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In sum, both Japan and the U.S. rely heavily on admissions of guilt, and the criminal justice systems in both countries often use high-pressure tactics to achieve that end. Both systems also fail to provide adequate judicial oversight of the processes that are used to pressure defendants into helping the state convict (Foote, 2010; Lynch, 2016). But there is an interesting difference too. While many international legal norms have been instituted to govern the process of criminal interrogation, human rights instruments have little to say about the high-pressure practices that make plea bargaining problematic in the U.S. and in other countries where “trial waiver systems” are expanding (Fair Trials, 2016, pp. 60-69). This gap in international norms may help explain why so much criticism was directed at Ghosn’s interrogations while the routine American practice of imposing pressure through plea bargaining seldom gets recognized.</div></blockquote><div style="text-align: justify;">You can read the entire article <a href="https://apjjf.org/2020/24/AronsonJohnson.html" target="_blank">here</a>. </div>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-30734405587393543932020-12-18T16:32:00.000-05:002020-12-18T16:32:38.600-05:00Federal Appeals Court Opinion Discusses Wired Pleas and Ineffective Assistance of Counsel<p style="text-align: justify;"><span style="font-family: inherit;">Those interested in case law regarding plea bargaining will want to take a look at the recent case of <i>United States v. Melvin Knight </i>(United States Court of Appeals for the District of Columbia Circuit, Decided December 8, 2020). The entire opinion is available <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/50012531AB7AAA85852586380053C413/$file/19-3016-1874785.pdf" target="_blank">here</a>. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The case involves interesting issues surrounding "wired pleas," the trial penalty, ineffective assistance of counsel, and the remedies available to co-defendants when the 6th Amendment is violated. From the case: </span></p><p></p><blockquote><p style="text-align: justify;"><span style="font-family: inherit;">In 2013, Melvin Knight and Aaron Thorpe were arrested for armed robbery and kidnapping. They were charged by the U.S. Attorney’s Office in the D.C. Superior Court and offered a generous plea deal by the Assistant U.S. Attorney: plead guilty to a single count of assault with a dangerous weapon and no further charges stemming from these crimes would be filed. Under the D.C. Superior Court Sentencing Guidelines, the likely sentences would be between two and six years for each defendant. The plea offer was wired, however, so both Knight and Thorpe had to accept it or it would be withdrawn. Thorpe wanted to accept the plea offer, but Knight, who was erroneously advised by his counsel that the offer came with ten years in prison and never advised by his counsel of the sentencing consequences of rejecting plea the offer, did not. Once they declined the plea offer, the government dismissed the Superior Court charges and prosecuted Knight and Thorpe on a ten-count indictment in federal court. A jury found Knight and Thorpe guilty on all counts, and the U.S. district court sentenced Knight to more than 22 years’ imprisonment and Thorpe to 25 years’ imprisonment.</span></p><p style="text-align: justify;"><span style="font-family: inherit;">On direct appeal, Knight and Thorpe both argued that they had been denied effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. This court, concluding that their claims were “colorable,” United States v. Knight, 824 F.3d 1105, 1113 (D.C. Cir. 2016), remanded the case. Following an evidentiary hearing after remand, the district court denied relief. Although agreeing that Knight’s counsel’s performance was deficient, the court determined that Knight had suffered no prejudice. The court rejected Thorpe’s claim that his counsel was deficient and did not address prejudice. Knight and Thorpe appeal. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">For the following reasons, we reverse in part. Knight satisfied his burden under both prongs of the standard for an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, as the government acknowledges, the performance by Knight’s counsel did not meet minimal professional standards. Second, the district court’s determination that Knight suffered no prejudice rested on subsidiary factual findings that ignored the direct effect of his counsel’s deficient performance on Knight’s ability to intelligently assess his options and therefore were clearly erroneous. Viewed properly, the contemporaneous evidence and Knight’s testimony at the evidentiary hearing sufficed to establish a reasonable probability Knight would have accepted the plea offer but for his counsel’s ineffective assistance. In contrast, we agree that Thorpe’s counsel was not ineffective and there was no violation of his Sixth Amendment rights. Accordingly, we affirm as to Thorpe and reverse the denial of Knight’s Sixth Amendment challenge, remanding his case to the district court to provide a remedy consistent with this opinion. </span></p></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">As readers digest the case, I think it worth noting a few things for focus. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">First, notice the size of the sentencing differential. The original offer was 2 to 6 years under the guidelines. After rejecting the plea offer, the charges were amended, resulting in sentences for the defendants after conviction of 22 years and 25 years. If the government's determination of a just resolution was initially 2 to 6 years, one must wonder what justifications existed for increasing the sentence 1,000% or more after trial. Was there something more to this decision than punishing the defendants for exercising their Constitutional right to trial?</span></p><p style="text-align: justify;"><span style="font-family: inherit;">Second, notice the use of "wired" plea offers in this case and the court's decision regarding how to address (or not address) the significant impact of the ineffective assistance of counsel on a co-defendant. </span></p><p style="text-align: justify;"></p><blockquote><p style="text-align: justify;"><span style="font-family: inherit;">According to Thorpe, even if his counsel was not deficient, the government must nonetheless reoffer the plea to both defendants, essentially because the generous plea offer in the Superior Court was wired. As Thorpe sees it, despite receiving constitutionally adequate counsel, he has suffered a Sixth Amendment injury “identical” to Knight because the ineffective assistance of Knight’s counsel prevented him from obtaining the benefits of the plea offer. Reply Br. 18. But although Thorpe expressed his desire to accept the plea offer from the outset, he knew that the plea offer was conditioned on both defendants accepting it. Thorpe’s ability to accept the wired plea offer was thwarted by Knight’s uninformed decision to reject it. He was also thwarted by the government’s refusal to unwire the defendants so he could accept the plea offer. Both defendants were convicted by a jury in federal court, and their convictions were affirmed on direct appeal, save for the remand on their ineffective assistance of counsel claims. In these circumstances, where Thorpe’s Sixth Amendment rights were not violated, the court is unaware of any precedent granting relief to one defendant because a co-defendant received the ineffective assistance of counsel. Nor does it seem appropriate to order the government to reoffer a wired plea in order to restore Knight to his original position because were this a different case and Knight’s co-defendant had been acquitted at trial, he would certainly refuse to accept the reissued wired plea, and Knight’s constitutional injury would not be remedied at all. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">The appropriate remedy for a defendant who received a wired plea offer but was prevented from taking it solely by his counsel’s ineffectiveness is simply to order the government to extend the offer to that defendant again, without regard to whether his co-defendant would be presently willing to accept the offer. Although this court cannot order that it do so, the government has the discretion to ameliorate any injustice that would result from permitting the inadequately counseled defendant to accept the original plea offer but not the codefendant whose counsel’s performance was adequate. Even now, the prosecution may seek dismissal of some or all of the charges against Thorpe under Rule 48(a) of the Federal Rules of Criminal Procedure. See, e.g., Rinaldi v. United States, 434 U.S. 22 (1977).</span></p><p style="text-align: justify;"></p></blockquote><p style="text-align: justify;"><span style="font-family: inherit;">In light of the court's above discussion, we must ask ourselves some pointed questions about wired pleas. Should a defendant who is willing to plead guilty and accept responsibility be denied the plea offer because a co-defendant independently and with advice of counsel decides not to follow suit? If so, should the ramifications of that inability to get the co-defendant to plead guilty be measured in decades? What is the explanation for that sentencing differential in this context? Does nothing change for the defendant who wanted to plead guilty even when it turns out that the co-defendant's decision was the result of ineffective assistance of counsel arising to the level of a Constitutional violation? And finally, should the remedy for the eventual result (that result being that the defendant who originally wanted to plead guilty but was prevented by his co-defendant remains in prison for decades) be left to the discretion of the prosecutors who created this sentencing differential in the first place? This case reminds us that there is much work to be done regarding the use and regulation of plea bargaining. </span></p>Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-14070352470644579102020-06-15T10:00:00.000-04:002020-06-15T10:00:04.243-04:00New NACDL & FAMM Documentary on Plea Bargaining and the Trial Penalty<div style="text-align: justify;">
<span style="font-family: inherit;">If you haven't watched the new documentary on plea bargaining and the trial penalty from FAMM and the NACDL, I highly recommend the film to you. The documentary, entitled "The Vanishing Trial," captures the difficult choices faced by defendants when confronting the trial penalty and focusses on four stories that leave the viewer with a vivid sense of the manner in which plea bargaining is jeopardizing our Constitutional right to a trial. </span></div>
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<span style="font-family: inherit;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;">More information about the documentary and how to view the film is available <a href="https://famm.org/vanishingtrial/" target="_blank">here</a>. From the website:</span></div>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="background-color: white; font-family: inherit;">Imagine you’re charged with a crime. Now you must choose between pleading guilty and receiving a shorter sentence–or going to trial and risking decades behind bars.</span> <span style="font-family: inherit;">“The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice. </span></blockquote>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: inherit;">Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutional right to trial instead of pleading guilty. We see how the trial penalty has led to the shocking disappearance of one of the most fundamental individual rights and the explosion in America’s prison population. </span> </blockquote>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="background-color: white; font-family: inherit;">Throughout the film, we hear the perspectives of national experts, including former federal judges and prosecutors, criminal defense lawyers, constitutional law experts, and criminal justice reform advocates. </span> </blockquote>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="background-color: white; font-family: inherit;">“The Vanishing Trial” was produced by FAMM producer/director Wynette Yao and cinematographer/editor Travis Edwards. Yao is an Emmy-nominated producer/director who has worked for National Geographic, Discovery, and other major networks. Edwards is an award-winning cinematographer/editor who has worked on a wide range of documentaries and features.</span></blockquote>
<div style="text-align: justify;">
<span style="font-family: inherit;">On Monday, June 15, 2020, there will also be a virtual panel discussion of the film. More information on this discussion is also available at the above link. </span></div>
Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-16780048562004754552020-06-14T16:34:00.000-04:002020-06-14T16:55:39.062-04:00Professor Dervan's Research Discussed in Flynn Brief<div style="text-align: justify;">
<span style="font-family: inherit;">Many in the public and the legal profession are closely following the many twists and turns of the Michael Flynn prosecution. Flynn, President Trump's former National Security Advisor, pleaded guilty in 2017 to making false statements during an interview with the FBI. In early May, 2020, however, the Department of Justice filed a motion to dismiss the prosecution, setting off a complex back and forth between the Department of Justice, Flynn's defense team, and the judge in the case, Judge Emmet Sullivan. The government's motion eventually led Judge Sullivan to seek advice regarding how to proceed from former federal judge John Gleeson. Judge Gleeson recently released a lengthy report reconstructing the prosecution and recommending that Judge Sullivan proceed with sentencing Flynn, despite the government's attempts to drop the case. In addition to deciding whether to accept the government's motion to dismiss the case or proceed with sentencing based on Flynn's 2017 plea of guilty, Judge Sullivan has also questioned whether he should pursue contempt proceedings against Flynn. In his report, Judge Gleeson advised against this additional sanction. </span></div>
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<span style="font-family: inherit;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;">As we wait to see how Judge Sullivan will proceed, many in the public have begun raising broader questions and concerns about the plea bargaining system. If Flynn did falsely plead guilty in return for a deal, what does that say about the reliability of a system in which 95% to 98% of convictions come from pleas of guilty. As readers of this blog know, these are the types of questions we have been asking and exploring for a long time as we consider the coercive nature of what I've coined "<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664620" target="_blank">bargained justice</a>."</span></div>
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<span style="font-family: inherit;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;">Last week, the National Association of Criminal Defense Lawyers filed an <i>Amicus Curiae</i> brief in the Flynn case arguing that the criminal contempt sanction should not be pursued against Flynn. The brief discussed my research on false pleas and what I describe as "<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2071397" target="_blank">The Innocent Defendant's Dilemma</a>" in support of the position. From the brief:</span></div>
<br />
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: inherit;">The psychology of “plea bargaining’s innocence problem” results in “innocent
participants [being] willing to falsely admit guilt in return for a perceived benefit.”
Dervan and Edkins Study, supra, at 4. In the Dervan and Edkins Study, college
students were confronted for allegedly cheating on an academic exercise. See id. at
28–33 (describing methodology of the study). By design, half of the students in fact
cheated in the experiment, and half were innocent. See id. Once confronted, the
student could either admit to cheating and accept a lenient punishment, or the
student could try his or her case before an academic panel and face the prospect of a
more serious punishment. See id. The study’s creators “sought to recreate the
innocent defendant’s dilemma in as real a manner as possible by presenting two
difficult and discernible choices to students and asking them to make a decision.” Id.
at 33. For example, study participants were informed that students going before the academic panel were found “guilty” 80–90% of the time. Id. at 32 (explaining that this
figure was selected to mirror conviction rates in criminal trials); cf. Mark Motivans,
Bureau of Justice Statistics, U.S. Dep’t of Justice, NCJ 251770, Federal Justice
Statistics, 2015–2016, at 9 (Jan. 2019),
https://www.bjs.gov/content/pub/pdf/fjs1516.pdf (noting that 91% of “defendants
whose cases were terminated” in district courts in 2016 “were convicted”). </span> </blockquote>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: inherit;">Over 56% of the “innocent” students took the plea offer rather than risk the
more serious penalties that could result from a trial. See Dervan and Edkins Study,
supra, at 34. In other words, “well over half of the innocent study participants … were
willing to falsely admit guilt in return for a reduced punishment.” Id. at 37. At its
core, the Dervan and Edkins Study relied on the same incentives—or disincentives—faced by defendants in courtrooms across the country, including the high likelihood
of conviction if they go to trial to claim their innocence. See id. And the study showed
that “innocent individuals are actually highly risk averse.” Id. </span> </blockquote>
<blockquote class="tr_bq" style="text-align: justify;">
<span style="font-family: inherit;">The Dervan and Edkins Study demonstrates why courts should not reject out
of hand a defendant’s claim of innocence when the defendant seeks to withdraw a
guilty plea. In many cases, that claim of innocence is well-founded. But the defendant
took the guilty plea to avoid the obvious risks of a harsher penalty at trial. See
Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev.
2463, 2507–10 (2004). Yet “[a]llowing people to continue to serve years of extra prison
time despite a plain error in their sentence undermines the legitimacy of the criminal
justice system.” Sarah French Russell, Reluctance to Resentence: Courts, Congress,and Collateral Review, 91 N.C. L. Rev. 79, 161 (2012). And a defendant suffering
under an unfair deal is more likely to withdraw or challenge it collaterally later,
which undermines the efficiency of the process, as well as society’s interest in the
finality of sentences. See McQuiggin v. Perkins, 569 U.S. 383, 393 (2013).</span></blockquote>
I agree with the NACDL's position on the possible contempt charges in this case. If, in fact, a defendant has been coerced into a false plea through bargained justice, let the system stand trial for that lie. As I argued in my <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3521552">brief</a> before the U.S. Supreme Court earlier this year, we know that individuals plead guilty for many reasons, some of which have little or nothing to do with their actual guilt. Courts should make decisions in their cases with full appreciation and acknowledgment that plea bargaining is not a reliable indicator of actual guilt and that, as anecdotal cases, empirical evidence, and psychological studies demonstrate, innocent defendants are falsely pleading guilty in significant numbers in our current system. Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-82943376644075694562020-01-16T12:46:00.000-05:002020-01-16T12:46:02.289-05:00Professor Dervan Files Amicus Brief with the U.S. Supreme Court Regarding Plea Bargaining and Innocence<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh0-jCYFsQhc_T9qxG_iPq473UMwn9HCy_1LUDZBDjahJc2CGr3efERHMScz1sQ-f7ABwZWfLKIWKDJTttKOuESJhYH5vljYlaGnmvM_DNjyaA7zDLKhXMwujD37dqppcDEzolnv7rE2ouH/s1600/TaylorBrief2020.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1200" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh0-jCYFsQhc_T9qxG_iPq473UMwn9HCy_1LUDZBDjahJc2CGr3efERHMScz1sQ-f7ABwZWfLKIWKDJTttKOuESJhYH5vljYlaGnmvM_DNjyaA7zDLKhXMwujD37dqppcDEzolnv7rE2ouH/s320/TaylorBrief2020.jpg" width="240" /></a></div>
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<span style="font-family: Times, Times New Roman, serif;">I filed my first <i>Amicus</i> Brief with the U.S. Supreme
Court last week. The Brief was filed in support of
the petitioner in the case of <i>Taylor v.
Pima County, Arizona et al.</i> The
petitioner, Louis Taylor, accepted an offer to plead no contest and go home
after spending 42 years behind bars following his wrongful conviction. As Judge Schroeder stated in the lower court,
“He accepted the offer, since his only alternative was to stay in prison and
wait for his petition for collateral relief to wend its way through the courts,
a process that could take years.” It
should come as no surprise that after over four decades the Taylor case should
conclude with a plea. As acknowledged by
the Supreme Court in <i>Lafler v. Cooper</i>
(2012), <span style="background: white;">“</span>[C]riminal justice today is for
the most part a system of pleas, not a system of trials.” But this case does not end with Taylor’s
freedom. Unfortunately, the Ninth
Circuit recently ruled that he should now be barred from recovering damages for
the alleged grievous deprivations of civil rights that led to his wrongful
imprisonment in the first place because, as a condition of immediate release,
he did the rational and now commonly accepted thing – he pleaded no contest to
time served. <o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 2.0pt; mso-hyphenate: none; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 2.0pt; mso-hyphenate: none; text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">This is an important
case for the Court to accept to both correct the error in the Ninth Circuit,
but also to correct the unsupported and erroneous assumption about the
reliability of plea bargaining that has permeated case law such as this since <span style="mso-bidi-font-weight: bold;">the Court approved of plea bargaining in the
1970 case </span><i style="mso-bidi-font-style: normal;">Brady v. United States </i>(1970).<span style="mso-spacerun: yes;"> </span>As an example, in 1975 in the case of <i style="mso-bidi-font-style: normal;">Menna v. New York</i> (1975), the Court
stated, “[A] counseled plea of guilty is an admission of factual guilt so
reliable that, where voluntary and intelligent, it quite validly removes the
issue of factual guilt from the case.”<span style="mso-spacerun: yes;">
</span>Recent psychological research, however, starting with my ground breaking
2013 study using the Edkins-Dervan Plea Bargaining Paradigm, has demonstrated
that individuals plead guilty for many reasons, some of which have little or
nothing to do with their actual guilt.<span style="mso-spacerun: yes;">
</span>The Taylor case is one such example, where obtaining immediate release
from prison, rather than waiting years for collateral relief, was the
determinative issue.<span style="mso-spacerun: yes;"> </span>Accepting the
Taylor case for review, therefore, affords the Court an important opportunity
to acknowledge that plea bargaining is not a reliable indicator of actual guilt
and that, as anecdotal cases, empirical evidence, and psychological studies now
demonstrate, innocent defendants plead guilty in our system.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin-bottom: 2.0pt; mso-hyphenate: none; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 2.0pt; mso-hyphenate: none; text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">Though plea bargaining
has existed in the shadows of our criminal justice system for well over 100
years and grew to dominance in the twentieth century, we are still learning
much regarding the process by which defendant’s engage in decision-making
within the system.<span style="mso-spacerun: yes;"> </span>Today, we know that
defendants plead guilty for a variety of reasons, some of which have little or
nothing to do with actual guilt.<span style="mso-spacerun: yes;"> </span>As the
Court considers the Taylor matter and what the future might hold for plea
bargaining jurisprudence more generally, I believe the Court should ensure that
this and future decisions are not made based on prior erroneous assumptions,
but rather, that the path forward is guided by what we now know about bargained
justice.<span style="mso-spacerun: yes;"> </span>Through such an informed and
considered process, the Court has the opportunity to prevent an injustice,
reinvigorate the meaningfulness and presumption of innocence, and still allow
for the efficiency and beneficial aspects of bargains. <o:p></o:p></span></div>
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<br /></div>
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<span style="mso-bidi-font-family: "Times New Roman";"><span style="font-family: Times, Times New Roman, serif;">You can read the entire Brief at
the below link.<o:p></o:p></span></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div class="MsoBodyText" style="margin-bottom: 2.0pt; text-indent: 0in;">
<span style="mso-bidi-font-family: "Times New Roman";"><span style="font-family: Times, Times New Roman, serif;"><a href="https://bit.ly/3aa6bL7">https://bit.ly/3aa6bL7</a>
<o:p></o:p></span></span></div>
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<br /></div>
<div class="MsoBodyText" style="margin-bottom: 2.0pt; text-indent: 0in;">
<span style="mso-bidi-font-family: "Times New Roman";"><span style="font-family: Times, Times New Roman, serif;">Writing the Brief was a great
experience, and I hope the Supreme Court takes action in this important area of
law that has gone unchecked for so long.<span style="mso-spacerun: yes;">
</span>Thank you to Belmont University College of Law for supporting me in my
research regarding false pleas and in the filing of this Brief. <span style="mso-spacerun: yes;"> </span>And thank you to my @BelmontLaw colleague,
Charlie Trost, for serving as my counsel.<o:p></o:p></span></span></div>
<div class="MsoBodyText" style="margin-bottom: 2.0pt;">
<br /></div>
<div class="MsoBodyText" style="margin-bottom: 2.0pt; text-indent: 0in;">
<span style="mso-bidi-font-family: "Times New Roman";"><span style="font-family: Times, Times New Roman, serif;">#pleabargaining
#bargainedjustice #innocence #criminaljusticereform</span><o:p></o:p></span></div>
<br />Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-34766862872433320212019-11-22T15:39:00.000-05:002019-11-22T15:39:03.905-05:00The Pursuit Podcast - Pressured to Plead Guilty<div style="text-align: justify;">
<span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">Readers of this blog will be interested to listen to the recently released podcast from <a href="https://www.libertarianism.org/podcasts/the-pursuit" target="_blank">The Pursuit</a> entitled "Pressured to Plead Guilty." In the podcast, I offer thoughts on the role of plea bargaining in the modern American criminal justice system. The podcast also features </span><span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">Clark Neily (Vice President for Criminal Justice at the Cato Institute), Kevin Ring (President of Families Against Mandatory Minimums), and Molly Gill (Vice President of Policy at Families Against Mandatory Minimums).</span><span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;"> The podcast does a wonderful job of weaving together </span><span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">policy considerations and the history of plea bargaining with the story of </span><span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">Kevin Ring's difficult decision whether to take a plea deal in return for a significant offer of leniency. </span><span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">Thank you to Landry Ayres and the Cato Institute for putting together such an informative and engaging discussion of plea bargaining. It was an honor to appear on the program.</span></div>
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<span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;"><br /></span></div>
<div style="text-align: justify;">
<span style="background-color: white; color: #1d2129; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">As I said in my closing thoughts during the podcast, "[W]e think ba</span><span class="text_exposed_show" style="background-color: white; color: #1d2129; display: inline; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">ck to the founders and the idea of creating our criminal justice system and all the rights that we put into our system because of our experiences historically... I don’t think we ever wanted a system that was efficient, first and foremost, I think what we wanted first and foremost was a system that was just, that was accurate and that we could rely upon." <a class="_58cn" data-ft="{"type":104,"tn":"*N"}" href="https://www.facebook.com/hashtag/pleabargaining?source=feed_text&epa=HASHTAG" style="color: #385898; cursor: pointer; font-family: inherit; text-decoration-line: none;"><span class="_5afx" style="direction: ltr; font-family: inherit; unicode-bidi: isolate;"><span aria-label="hashtag" class="_58cl _5afz" style="color: #365899; font-family: inherit; unicode-bidi: isolate;">#</span><span class="_58cm" style="font-family: inherit;">pleabargaining</span></span></a> <span class="_5afx" style="color: #385898; cursor: pointer; direction: ltr; font-family: inherit; text-decoration-line: none; unicode-bidi: isolate;"><a class="_58cn" data-ft="{"type":104,"tn":"*N"}" href="https://www.facebook.com/hashtag/criminaljusticereform?source=feed_text&epa=HASHTAG" style="color: #385898; cursor: pointer; font-family: inherit; text-decoration-line: none;"><span aria-label="hashtag" class="_58cl _5afz" style="color: #365899; font-family: inherit; unicode-bidi: isolate;">#</span><span class="_58cm" style="font-family: inherit;">criminaljusticereform</span></a></span></span></div>
<div style="text-align: justify;">
<span class="text_exposed_show" style="background-color: white; color: #1d2129; display: inline; font-family: Helvetica, Arial, sans-serif; font-size: 14px;"><br /></span></div>
<div style="text-align: justify;">
<span class="text_exposed_show" style="background-color: white; color: #1d2129; display: inline; font-family: Helvetica, Arial, sans-serif; font-size: 14px;">Click <a href="https://www.libertarianism.org/podcasts/pursuit/pressured-plead-guilty" target="_blank">here</a> to listen to the podcast.</span></div>
Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-50325303891314709852019-08-22T16:39:00.000-04:002019-08-22T16:39:04.862-04:00Professor Dervan Testifies Before the Federal Senate of Brazil<div style="text-align: justify;">
<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;"><br /></span></div>
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<span style="font-family: inherit;"><span style="text-indent: -0.25in;">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</span><span style="text-indent: -0.25in;"> 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.</span><span style="text-indent: -0.25in;"><span style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="text-indent: -0.25in;">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. </span></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;">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<span style="text-align: justify; text-indent: 48px;">, efficient, and reliable plea bargaining process.</span></span></div>
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<span style="font-family: inherit;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: inherit;">You can watch my testimony, which occurred via video, below. You can also read the </span>transcript<span style="font-family: inherit;"> of my full remarks to the Senate at the end of this blog post. </span></div>
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<iframe width="320" height="266" class="YOUTUBE-iframe-video" data-thumbnail-src="https://i.ytimg.com/vi/UKZUCIhUWRg/0.jpg" src="https://www.youtube.com/embed/UKZUCIhUWRg?feature=player_embedded" frameborder="0" allowfullscreen></iframe></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">HEARING<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 10.0pt; font-variant: small-caps;">Before the <o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">FEDERAL SENATE OF BRAZIL<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">COMMISSION OF CONSTITUTION AND JUSTICE<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">Testimony of Professor Lucian E. Dervan<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">Belmont University College of Law<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 13.0pt; font-variant: small-caps;">August 6, 2019<o:p></o:p></span></b></div>
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<span style="font-variant: small-caps;"><span style="font-size: 13pt;"> </span><span style="font-family: inherit;"> </span></span><span style="font-family: inherit;">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.<o:p></o:p></span></div>
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<br /></div>
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<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<br /></div>
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<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>Plea bargaining is a powerful and dominant tool in the
modern American criminal justice system.<span style="mso-spacerun: yes;">
</span>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. <span style="mso-spacerun: yes;"> </span>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.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoFootnoteText">
<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>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.<span style="mso-spacerun: yes;">
</span>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.
<span style="mso-spacerun: yes;"> </span>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.” <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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 <i style="mso-bidi-font-style: normal;">Bargained Justice </i>in the
Utah Law Review for a more detailed discussion.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<br /></div>
<div class="MsoFootnoteText">
<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">At
its simplest, plea bargaining is a contract for mutual benefits.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>Finally, plea bargaining can offer a formal
mechanism for encouraging and rewarding acceptance of responsibility. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">Importantly,
the defendant may also gain significant benefits from such an agreement.<span style="mso-spacerun: yes;"> </span>The defendant, for example, can avoid the significant
financial, personal, and emotional costs of a trial.<span style="mso-spacerun: yes;"> </span>The defendant can also often reap the benefit
of a lower sentence, sometimes significantly lower, in return for pleading
guilty.<span style="mso-spacerun: yes;"> </span>Similarly, a defendant being
held in pretrial detention may be able to secure their release through a plea
bargain.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
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<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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. <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>So, with the remainder
of my time, let me talk a little about plea bargaining’s innocence
problem.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>Greater details about the study and the
paradigm constructs are available in our 2013 article entitled <i style="mso-bidi-font-style: normal;">The Innocent Defendant’s Dilemma </i>in The
Journal of Criminal Law and Criminology. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">Important
to our discussion today is the fact that both guilty and innocent participants
accepted the plea deal and admitted committing the academic misconduct.<span style="mso-spacerun: yes;"> </span>Specifically, 89% of the students who had, in
fact, cheated took the offer.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">This
groundbreaking study has now been successfully replicated numerous times by
other labs around the world using our paradigm for validation.<o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">The
false pleas phenomenon also arose as an issue of significant concern in a
recent collateral consequences study that I conducted with Professor
Edkins.<span style="mso-spacerun: yes;"> </span>In the study, we asked participants
to examine several hypothetical situations and decide whether to accept a plea
offer.<span style="mso-spacerun: yes;"> </span>In some of the hypotheticals,
participants were told to assume they were guilty of the charged offense.<span style="mso-spacerun: yes;"> </span>In other hypotheticals, they were informed of
their innocence.<span style="mso-spacerun: yes;"> </span>Similarly, some
hypotheticals involved pre-trial detention and others did not.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">As
I noted at the beginning of my testimony, plea bargaining is an American
invention that rose to dominate our system in the 1900s.<span style="mso-spacerun: yes;"> </span>But, as this hearing demonstrates, the use of
plea bargaining around the world is growing rapidly.<o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<span style="font-family: inherit;"><span style="mso-tab-count: 1;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>We did this to mirror similar requirements contained in Japan’s new plea
bargaining laws.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">Our initial findings should give us further pause
regarding the risks associated with the plea process. <span style="mso-spacerun: yes;"> </span>First, once again we are finding that both
guilty and innocent participants are willing to plead guilty.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>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.<o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">As I noted in the beginning of my testimony, the plea
bargaining system holds great opportunity, but, as my research illustrates,
also great risk.<span style="mso-spacerun: yes;"> </span>Let me finish then by
offering a few thoughts about the potential path forward should Brazil choose
to formalize plea bargaining through this legislation.<span style="mso-spacerun: yes;"> </span>There are a number of avenues that might be
taken in conjunction with this legislation to mitigate the risks I have
identified today.<span style="mso-spacerun: yes;"> </span>Let me mention just a
few to begin a conversation about this important aspect of creating a balanced,
efficient, and reliable plea bargaining system. <o:p></o:p></span></div>
<div class="MsoFootnoteText">
<span style="font-family: inherit;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>This includes
ensuring that defense counsel has properly investigated the case before making
a recommendation to the client.<span style="mso-spacerun: yes;"> </span>To
achieve these goals, consideration should be given to mechanisms to provide
well-funded counsel to defendants early in the process.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">Third,
consideration should be given to procedures for ensuring that relevant
evidence, especially <span style="color: #333333; mso-bidi-font-weight: bold;">information
known to the prosecution that tends to n</span><span style="color: #333333;">egate
the guilt of the accused or mitigate the offense charged or sentence</span>, is
made available to defendants before a decision is made regarding whether to
accept a plea deal.<o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;"><span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">Seventh,
consideration should be given to how transparency and accountability might be
encouraged when implementing a new plea bargaining system.<span style="mso-spacerun: yes;"> </span>These could include requirements such as requiring
plea offers to be in writing and requiring that plea offers be disclosed to the
court.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<br /></div>
<div class="MsoFootnoteText" style="text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>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. <o:p></o:p></span></div>
<div class="MsoFootnoteText" style="text-align: justify;">
<br /></div>
<div class="MsoFootnoteText" style="text-align: justify; text-indent: .5in;">
<span style="font-family: inherit;">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.<span style="mso-spacerun: yes;"> </span>I would also be happy to take any questions
you may have for me today. <o:p></o:p></span></div>
<br />Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0tag:blogger.com,1999:blog-4961661396182361687.post-22747419971055002452018-12-06T12:47:00.002-05:002018-12-06T12:47:44.981-05:00Professor Dervan's New Scholarship on the Supreme Court and Plea Bargaining<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">My new piece, entitled <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293868" target="_blank">C<i>lass v. United States: Bargained Justice and a System of Efficiencies</i></a>, 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. </span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">The piece ends with these words:</span></div>
<blockquote class="tr_bq" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">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.<br /><br />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.<br /><br />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.</span></div>
</blockquote>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">Click <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293868" target="_blank">here </a>to download a free copy of the entire piece. </span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><u>Abstract</u></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><i>Class v. United States: Bargained Justice and s System of Efficiencies</i></span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">Cato Supreme Court Review (2018)</span></div>
<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
<div style="text-align: justify;">
<span style="background-color: white;"><span style="font-family: Times, Times New Roman, serif;">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?</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><br /></span></div>
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Lucian E. Dervanhttp://www.blogger.com/profile/15788202083915906382noreply@blogger.com0