The Plea Bargaining Blog

Judge Jed Rakoff has published a very interesting piece in The New York Review of Books entitled "Why Innocent People Plead Guilty." I would encourage readers of this blog to take a look at this in-depth analysis of how we came to have a system in which 95%-97% of convictions are the result of a plea of guilt. The opening paragraphs: The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes. To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” ... In 2013, while 8 percent of all federal criminal ch...

According to the Wall Street Journal, the DOJ will soon announce a major policy shift regarding plea agreements and certain types of waivers.  According to the paper, Attorney General Holder is preparing to announce that the government will no longer request defendants waiver their right to appeal for ineffective assistance of counsel.   The waivers are used by about one-third of the 94 U.S. attorneys' offices and have come under increased scrutiny by legal ethics authorities in recent years. While federal prosecutors say the waivers pre-empt frivolous litigation and preserve resources, defense lawyers and federal public defenders argue they create a conflict of interest and insulate attorney conduct from judicial review. The debate has grown in importance now that nearly all charges in federal and state courts are settled with plea bargains. These agreements represented more than 97% of all federal convictions in 2013, said the Administrative Office of the U.S. Courts. By s...

I am pleased to announce that my short story, entitled " A Prisoner of Time ," has been selected as the winner of the  2014 Hofstra Law School Mystery Short Story Contest  and is now available on the Mulholland Books website.  The competition was judged by Lee Child, New York Times bestselling author of the Jack Reacher series, Marcia Clark, the former OJ Simpson prosecutor and author of the highly-praised Rachel Knight series, and Alafair Burke, best selling author of ten thrillers. Below are the first few paragraphs of story. The years passed faithfully, each one much like the last, and yet each distinctive and filled with its own memories.  George Duncan, known simply as Duncan since his first year of school, sat in his large recliner.  Though the chair was old and tattered, the fabric was woven with far too many memories to discard.  Duncan, currently in the eighth decade of his life, had never felt the cold beneath his skin as he did now.  But...

The Economist has an excellent article on the Criminalization of American Companies entitled " A Mammoth Guilt Trip ."  Among the many interesting issues the article examines is this regarding the risks of proceeding to trial for corporations: Chief executives now say it would be simply irresponsible for them to run the risk of an indictment and trial. The result is “regulation through prosecution”, argues James Copland of the Manhattan Institute, a think-tank. The mere threat of an indictment forces a negotiation which can lead to an entire new construction of law. So how does a legal process without an open trial operate? The kind answer is “mysteriously”; a harsher one might be “coercively”.  Read the entire article here .

The Wall Street Journal has an interesting article discussing the rise in arrest records in the U.S.  From the opening paragraphs: America has a rap sheet. Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates.  As a result, the FBI currently has 77.7 million individuals on file in its master criminal database - or nearly one out of every three American adults. The full article is available here .

For the third straight year, the American Bar Association Criminal Justice Section will host a one and a half day conference that will feature topflight legal practitioners from across the globe tackling such topics as corporate espionage and cybercrimes, international money laundering and sanctions, cross-border evidentiary concerns, whistleblowers, deferred prosecution agreements and international internal investigations.  Special focus will be paid to fraud and bribery cases from the perspective of top prosecutors from various countries. The conference will occur on October 13-14, 2014 in London, UK.  This year's featured speaker at the Monday luncheon will be Michael J. Garcia.  Mr. Garcia is a partner at Kirkland & Ellis LLP in New York City and serves as the Independent Chair of the Investigatory Chamber of the FIFA Ethics Committee.  Prior to joining Kirkland & Ellis, he served as the Senate-confirmed United States Attorney for the Southern ...

The Dallas County District Attorney's Office has issued a press release regarding a new exoneration. According to the DA's Office, this is a first-of-its-kind exoneration because it results from systematic DNA testing, even though the soon-to-be exoneree was not actively proclaiming his innocence or requesting DNA testing. It is also important to note for readers of this blog that the exoneree pleaded guilty to the charged offense (rape) even though he was in fact innocent. A 57-year old Dallas man falsely convicted of sexual assault will be exonerated as a result of systematic DNA testing by a district attorney’s office, even though he was not actively proclaiming his innocence or requesting DNA testing. According to the National Registry of Exonerations, this is the first time in the United States an exoneration of this nature has occurred. Mr. Michael Phillips, an African-American, served 12 years in prison after pleading guilty in 1990 for raping a 16-year-old Caucasi...

An interesting new case from the 7th Circuit.  In United Sates v. Harden  (7th Cir. July 14, 2014), the court examined whether a magistrate judge could properly accept a plea of guilty from a defendant charged with a felony.  From the opinion: Pursuant to a written plea agreement, Defendant-Appellant Stacy Lee Harden pled guilty to possession with the intent to distribute cocaine.  With Harden's consent, the district court instructed a magistrate judge to conduct a Federal Rule of Criminal Procedure 11 plea colloquy under a local rule allowing for magistrate judges to accept felony guilty pleas.  The magistrate judge accepted Harden's guilty plea, and the district court then conducted a sentencing hearing and imposed sentence.  Harden now appeals the magistrate judge's acceptance of his guilty plea, arguing that the magistrate judge's acceptance of a felony guilty plea, instead of preparing a report and recommendation to the district court, was a violatio...

Citigroup has agreed to pay $7 billion related to allegations that it packaged bad mortgages during the pre-financial crisis period.  $4 billion of the payment will be penalties for the alleged conduct.  $2.5 billion will be used in mortgage modifications and related relief for homeowners.  The remaining $500 million will be distributed between five states and the Federal Deposit Insurance Corp. The settlement avoids further civil litigation by the Department of Justice.  According to CNN, Attorney General Eric Holder stated, "Under the terms of this settlement, the bank has admitted to its misdeeds in great detail.  The bank's activities shattered the livelihoods throughout the country."  He went on to state, "They contributed mightily to the financial crisis that devastated our economy in 2008." The entire CNN article regarding the settlement is available here .

In November 2013, I testified before the United States House of Representatives' Committee on the Judiciary Over-Criminalization Task Force. During my testimony, I examined the phenomenon of over-criminalization, particularly in the regulatory area, and offered several recommended solutions for Congressional adoption. First, I recommended the adoption of a default rule for mens rea . Second, I recommended the adoption of a default rule applying mens rea to all material elements of an offense. Third, I recommended the codification of the Rule of Lenity. Finally, along with some additional recommendations for consideration, I discussed the role of plea bargaining in the U.S. criminal justice system and encouraged the Task Force to more closely examine this issue in the future. My written testimony from that hearing is now available on SSRN for free download by clicking here . A previous post regarding my testimony is available by clicking  here .

BNP Paribas, a French bank, has pleaded guilty to criminal charges related to breaching U.S. sanctions. Under the terms of the deal, it is reported that BNP Paribas will pay almost $9 billion in penalties. From CNN: The settlement concludes a long-running criminal investigation into allegations that BNP Paribas (BNPQF) violated U.S. money laundering laws by helping clients dodge sanctions on Iran, Sudan and other countries.   The deal between the bank and prosecutors had been expected for months.      Shares in the bank edged higher Monday in Paris, having fallen more than 12% so far this year in anticipation.   In an agreement with the Manhattan District Attorney Cyrus Vance, the bank pleaded guilty to falsifying business records and conspiracy in Manhattan Supreme Court.    It is expected to plead guilty for violating money laundering laws in federal court with U.S. Attorney Preet Bharara next week.The bank also agreed to a sanction by the N...

I recently posted my article entitled "White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," to SSRN for free download.  Below is the article's full abstract.  A free copy of the article is available for download by clicking here .  Abstract White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence , 101 Kentucky Law Journal 723 (2013). Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress...

I recently posted my article entitled "Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem" to SSRN for free download.  Below is the article's full abstract.  A free copy of the article is available for download by clicking here . Abstract Vanessa A. Edkins and Lucian E. Dervan, Pleading Innocents:   Laboratory Evidence of Plea Bargaining’s Innocence Problem , 21 Current Research in Social Psychology 14 (2013) (peer reviewed) We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an...

I recently posted my new article entitled "International White Collar Crime and Deferred Prosecution Agreements" on SSRN for free download.  The article examines deferred prosecution agreements in the U.S. and U.K., including close analysis of new rules regarding the use of Deferred Prosecution Agreements in the U.K.   Deferred prosecution agreements (“DPAs”) are negotiated settlements of criminal investigations entered into between the government and the investigated entity.   Typically, such agreements require an entity to admit wrongdoing, pay a substantial fine, and engage in remedial measures.   If an entity succeeds in satisfying the requirements of a DPA, the government agrees to dismiss any criminal charges that have been filed against the entity related to the matter.   While distinct from traditional plea bargaining because the defendant corporation does not enter a plea of guilty before a court, there is much overlap between these two types of negot...

I recently posted my new article entitled "The Quest for Finality: Five Stories of White Collar Criminal Prosecution" on SSRN for free download.  The article examines various negative outgrowths of our quest for finality in the criminal justice system, including our tendency to value finality over accuracy.  In valuing finality over accuracy, plea bargaining stands center stage.  Though this article focuses on the larger issue of "finality," it includes a lengthy discussion of plea bargaining and its role in our criminal justices system and might be of interest to readers of the blog. Below is the article's full abstract.  A free copy of the article is available for download by clicking here . Abstract Lucian E. Dervan, The Quest for Finality: Five Stories of White Collar Criminal Prosecution , 4 Wake Forest Journal of Law & Policy 91 (2014) (symposium article). In this symposium article, Professor Dervan examines the issue of finalit...

I am pleased to announce that registration is now open for the upcoming ABA Criminal Justice Section conference regarding " White Collar Crime and Regulatory Trends in the European Union and U.S. "  The conference will occur in Amsterdam, Netherlands from May 15-16, 2014.  The first day will include a number of panel discussions examining important issues in the field. This conference will bring together a cadre of international experts to examine the most current, pressing, and difficult issues in the European Union and United States regarding this rapidly changing field. The panelists, emanating from numerous countries around the world, will address topics including: corporate espionage and cyber-crime; global internal investigations; securities laws and accompanying whistleblower programs; anti-corruption enforcement; money laundering and sanctions violations; and trends in enforcement and compliance. This conference seeks to offer invaluable insights regarding white...

I was recently interviewed by the Houston Chronicle regarding the case of Corey Anthony Love. It's more than likely that Corey Anthony Love has no earthly idea he has been found innocent of the crime to which he pleaded guilty seven years ago and for which he spent 105 days in state jail... Love was one of 87 listed in the annual report of the National Register of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. Texas led the nation with 13 exonerations. His case was hardly the stuff of headlines and outrage. He did not spend decades in prison as an innocent man. He wasn't railroaded by an unscrupulous prosecutor or condemned to a life of hell by mistaken identity or shoddy forensic work. His was a minor drug offense. He pleaded guilty to the crime. He served relatively little time behind bars. But to the authors of the report, what makes Love's case, and the other six ...

I wanted to bring this incredible CLE/MCE opportunity to my readers' attention.  From May 31 through June 7, 2014, SIU School of Law will host a program in Germany entitled "Nuremberg's Legacy: Law, Medicine, & Ethics." The program description is below. During this week-long journey, travelers will visit Munich and Nuremberg to learn about the role of law, medicine, and ethics in Germany during and after WWII. Participants will have the opportunity to tour sites of legal and historical significance, including the courthouse in which the Nuremberg Trials occurred and the Dachau Concentration Camp Memorial, and receive lectures from international experts in their fields. Along with a rich educational program, there will be time for independent sightseeing, including a visit to the picturesque Bavarian town of Bamberg, a UNESCO World Heritage Site. Registration is now open at this link . More information about the program is available here .

The ACLU has an interesting article regarding the growing trend in the United States of debtor's prison.  The American Civil Liberties Union of Colorado accused three Front Range cities this morning of jailing people for failing to pay court-ordered fines that they are too poor to pay. Relying on state and federal court decisions, the ACLU sent letters to the cities demanding a prompt halt to the practice. The ACLU conducted an in-depth investigation into the municipal courts of Westminster, Wheat Ridge, and Northglenn, which routinely issue "pay or serve" warrants without any consideration for or inquiry into a debtor’s ability to pay. "Pay-or-serve" warrants authorize a debtor’s arrest. Once in custody, the debtor must either pay the full amount of the fine or "pay down" the fine by serving time in jail at a daily rate set by the court. Wheat Ridge and Northglenn set the rate at $50 per day, while Westminster converts all unpaid fines into ten-day ...

The New York Times has an interesting discussion of the process by which JPMorgan Chase decided to accept a deferred prosecution agreement from the government with regard to allegations that the bank ignored warning signs regarding the conduct of infamous Pozi schemer Bernard Madoff.  The DPA, announced this week, will require the bank to pay over $2 billion in penalties.  Two men who occupy coveted roles in Manhattan’s power elite, one the city’s top federal prosecutor and the other its top banker, sat down in early November to discuss a case that was weighing on them both. Preet Bharara, the United States attorney in Manhattan, and Jamie Dimon, the chief executive of JPMorgan Chase, gathered in Lower Manhattan as Mr. Bharara’s prosecutors were considering criminal charges against Mr. Dimon’s bank for turning a blind eye to the Ponzi scheme run by Bernard L. Madoff. Mr. Dimon and his lawyers outlined the bank’s defense in the hopes of securing a lesser civil case,...