The Plea Bargaining Blog

BP will plead guilty to fourteen criminal counts and pay $4.5 billion to resolve a U.S. DOJ criminal investigation into the 2010 Deepwater Horizon oil rig explosion and oil spill in the Gulf of Mexico. Three BP employees have also been charged criminally in the matter. According to the New York Times:  “This is unprecedented, both with regard to the amounts of money, the fact that a company has been criminally charged and that individuals have been charged as well,” Attorney General Eric H. Holder Jr. said at a news conference in New Orleans to announce the settlement. The government said that BP’s negligence in sealing an exploratory well caused it to explode, sinking the Deepwater Horizon drill rig and unleashing a gusher of oil that lasted for months and coated beaches all along the Gulf Coast. The company initially tried to cover up the severity of the spill, misleading both Congress and investors about how quickly oil was leaking from the runawa...

2013 WCCDC dates: January 9 - 13, 2013 The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter. Seminar Location: Stetson University College of Law 1401 61st St. S. Gulfport, FL 33707 Hotel Accommodations: Loews Don CeSar Hotel 3400 Gulf Boulevard St. Pete Beach, FL 33706 This is an excellent c...

The NYT published an interesting op-ed regarding the issue of felon disenfranchisement this week. The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies. They will bar about 5.85 million people from voting in this year’s election.  In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life. Nationally, nearly half of those affected have completed their sentences, including parole or probation.  Policies that deny voting rights to people who have paid their debt to society offend fundamental tenets of democracy.   But the problem is made even worse by state and local election officials so poorly informed about the law that they misinform or turn away people who have a legal right to vote.   Click her...

On December 7, 2012, the ABA Criminal Justice Section will host a conference regarding International Internal Investigations in Frankfurt, Germany. "In today’s globalized economy and enforcement environment, internal corporate investigations are becoming complex and evolving international endeavors. This conference will bring together members of the international law enforcement community, general counsel, compliance officers, outside counsel, investigators, auditors, and legal scholars to discuss the most current, pressing, and difficult issues in this rapidly changing field. The panelists, emanating from numerous countries around the world, will address topics including: recent trends in transnational internal investigations; strategies for selecting the right investigators and the appropriate investigatory model; best practices for collecting, reviewing, and transferring documents internationally; tactics and pitfalls when interacting with employees, internal c...

The Wall Street Journal has an excellent feature article today about plea bargaining in the federal criminal justice system.  In mid June, under a deal with federal prosecutors, Kenneth Kassab was on the verge of pleading guilty to illegally transporting thousands of pounds of explosives when he changed his mind. A week later, he was acquitted by a federal jury.  Though Mr. Kassab maintained his innocence, he said in an interview that he had been prepared to plead guilty to avoid the risk of possibly decades in prison... The entire WSJ article can be accessed here . Along with the feature piece, the Wall Street Journal wrote a second insert article regarding the new plea bargaining study from myself and Professor Vanessa Edkins previously mentioned on this blog - see here . Two university professors last year did an experiment to explore one of the more controversial questions of criminal law: How often do innocent defendants plead guilty to crimes to ...

Each year HiiL, a research and development institute for the justice sector, holds the Innovating Justice Awards. According to their website, "The Innovating Justice Awards are designed to stimulate innovations in the justice sector. Rule of Law professionals can identify the most promising developments in the field. Innovators are motivated to improve and to apply their innovations across borders. Nominees and applicants will be able to share their setbacks, successes and best practices." This year, my innovative idea entitled "Implementing Plea Bargaining Justly" has been nominated for most innovative idea. The introductory paragraph of the innovation is reprinted below. Plea bargaining has become a globalised phenomenon due to growing numbers of prosecutions and constrained judicial budgets. Each year, new countries explore the implementation of plea bargaining as a remedy for their burdened criminal justice systems. Unfortunately, plea bargaining is currently ...

Professor Dervan's new article, written with Prof. Vanessa Edkins and entitled  The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, will be published in volume 103 of the Journal of Criminal Law & Criminology . In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. B...

Professor Berman's Sentencing Law and Policy Blog has a link to an article in the Denver Post discussing a federal judge's rejection of a plea agreement because it contained a waiver of appellate review.  Click here to see Professor Berman's post.  Click here to see the Denver Post article.  The New York Times has also weighed in on the case.  In an editorial, the paper stated, "An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues."  The editorial went on to state that where appellate waivers are permitted, "Our system of pleas then looks more like a system of railroading." Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases...

The New York Times has an excellent series of articles discussing halfway houses in New Jersey. Below is a portion of one of the stories in the series. After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets. In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.   At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.   Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.   New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House. ...

The New York Times has a fascinating article about a plea deal that included a requirement that the defendant serve his time in solitary confinement. The plea bargaining was long and difficult. The defendant, Peter Rollock, the leader of a Bronx narcotics gang, had been charged in seven killings.   Federal prosecutors wanted the death penalty; any plea deal would have to include a mandatory life sentence.   But prosecutors had another demand: because Mr. Rollock, then 25, had been accused of ordering some of the killings from jail, he would be placed in solitary confinement and barred from communicating with virtually all outsiders.   Pistol Pete, as Mr. Rollock was known, agreed to the deal, and in late 2000, he was sent to the federal Supermax prison, as the Administrative Maximum, or ADX, facility in Florence, Colo., is known, and where some of the nation’s most infamous criminals are housed. With that, he might have retreated from public view forever. But...

The ACLU has issued a new report regarding the incarceration of the elderly entitled " At America's Expense: The Mass Incarceration of the Elderly ".  From the ACLU website. Elderly prisoners are twice as expensive to incarcerate as the average prisoner and pose little danger to society, yet the population of elderly prisoners in the United States is exploding. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it. This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s. Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify thei...

On Friday, June 1, 2012, from 2:00-3:00pm eastern, Professor Dervan will discuss plea bargaining on Public Radio International's To the Point with Warren Olney.  Among other things, the show will discuss the case of Brian Banks  and plea bargaining's innocence problem. The show is syndicated nationally and available in many metropolitan markets.  Further, you can link to the show here .  At the show's website, you can access additional materials, listen to the show live, and link to a podcast of the show after the broadcast.

I just posted an article online regarding a new empirical study conducted by myself and Professor Vanessa Edkins that examines plea bargaining's innocence problem.  Below is an abstract of the piece, which is entitled The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem.   You can access a free copy of the article here . Abstract In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the ince...

There has been much attention recently to the case of Brian Banks in California.  This is a fascinating example of the incentives created by sentencing differentials and the issue of plea bargaining's innocence problem.  Ten years ago, Banks faced a stark choice between proceeding to trial, which came with a probable sentence of 41 years to life in prison, or taking a plea deal, with a promised sentence of three years.  Like so many others and despite his innocence, Banks took the deal. From NPR: Five years in prison. Then five years of probation and wearing an electronic monitoring device. The shame of being a registered sex offender. Not being able to get a job. His dream of playing in the NFL destroyed, possibly forever.  Brian Banks, now 26, has gone through all that.Then Thursday, the California man's rape conviction was dismissed.   His accuser, who last year sent Banks a message on Facebook suggesting that they "let bygones be...

On Wednesday, March 28, 2012, I testified before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.  A portion of my testimony regarding plea bargaining is below.  In closing, I would like to address one additional issue. While creating additional overlapping federal criminal statutes and significantly increasing the statutory maximum penalties for offenses related to prescription drug offenses may not result in greater deterrence of potential offenders or significantly increase sentences for those convicted, such legislation will perpetuate the phenomenon of overcriminalization and with it the continued deterioration of our constitutionally protected right to trial by jury. Today, almost 97% of criminal cases in the federal system are resolved through a plea of guilty. As the number, breadth, and sentencing severity of federal criminal statutes continue to increase through overcriminalization, prosecutors gain increased ability to cr...

As detailed by the SCOTUSblog , the Supreme Court recently handed down two important decisions regarding plea bargaining in the cases of Missouri v. Frye and Lafler v. Cooper . In Missouri v. Frye and Lafler v. Cooper , the Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice. Writing for a five-four majority in each case, Justice Anthony M. Kennedy reasoned that the right to counsel extends to the plea-bargaining process because of the “simple reality” that plea bargaining is so pervasive in our system such that the negotiation of a plea “is almost always the critical point for a defendant.” Justice Antonin Scalia, who pointedly read a summary of his dissenting opinions in both cases from the bench, called the decisions “inconsistent with the Sixth Amendment and decades of our precedent.” The four dissenting Justices also c...

Southern Illinois University School of Law students and the Downstate Illinois Innocence Project are working to exonerate Grover Thompson.  Thompson died in prison in 1996 while serving a 40 year sentence for the 1981 stabbing death of Ida White in Mount Vernon, Illinois.  Below is an article from The Southern about the case.  Timothy Krajcir, who has pleaded guilty to murders in Illinois, Kentucky, Missouri and Pennsylvania, claimed responsibility for the stabbing, though some investigators question the validity of his admission. The project will present the case to the Illinois Prisoner Review Board on Wednesday in Springfield.   Nichole LaForte, a third-year SIU law student from Indianapolis, said she came across the case during her Public Interest Externship. She and a fellow student attended a book signing and mentioned her interest to Paul Echols, a retired lieutenant with Carbondale Police Department whose investigations into the local cold case of t...