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ABA Adopts the 14 Principles on Plea Bargaining

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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  here ). Included in our report were 14 Principles that we developed to create a fairer, more transparent, and more just criminal system.  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 i
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ABA CJS Plea Bargaining Task Force Releases Report

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Earlier today, the American Bar Association Criminal Justice Section Plea Bargaining Task Force released its final report, which includes 14 recommendations for creating a more transparent, fairer and more just system. 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.  More information about the task force and a copy of the report are available on the task force website . The 14 Principles from the Report: Principle 1 : A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice and legitim
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Article Regarding Jails and False Pleas of Guilty

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Earlier this week, we announced the creation of the Plea Bargaining Institute . Today, we share a recent article from one of the members of the Plea Bargaining Institute's Advisory Board - Rodney Roberts . Mr. Roberts is an exoneree and re-entry coach with the Innocence Project.  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.  From the piece: 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. 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. 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
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Prof. Dervan and Fair Trials Launch Plea Bargaining Institute

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Criminal justice watchdog Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (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.  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.
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Eastern District of New York Recognizes Impact of Sentencing Differentials

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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: 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 de
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Federal Legislation Regarding the Trial Penalty and Mandatory Minimums

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Earlier this year, several members of Congress introduced a bill aimed at adding additional statutory protections for the Constitutional Right to Trial. Entitled the " Right to Trial Act ," 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.  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 coe
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New Reports on Global Plea Bargaining from Fair Trials

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Fair Trials , 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. The first report, " Efficiency over justice: Insights into trial waiver systems in Europe ," was released in December 2021. From the executive summary: 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
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