The 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.
The Quest for Finality: Five Stories of White Collar Criminal Prosecution
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.
Lucian E. Dervan, The Quest for Finality: Five Stories of White Collar
Criminal Prosecution, 4 Wake Forest Journal of Law & Policy 91 (2014)
In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.
Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.
First, the stories demonstrate that we must be careful not to value finality over accuracy. As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency. Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one. Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price. Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting. While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.
According to the Korea Times , South Korea is considering implementation of a plea bargaining system, and the lead prosecutor has stated that the system would initially be utilized for corruption cases. If these plans move forward, this will offer a unique opportunity to observe a criminal justice system's implementation of plea bargaining from the beginning. The prosecution is seeking to adopt plea-bargaining for corruption cases. Prosecutor General Lim Chae-jin stressed the importance of criminal law reform, including the introduction of a plea bargaining system, at the prosecution's 60th anniversary ceremony held in southern Seoul, Friday. "It is time for Korea's judiciary to adopt plea-bargaining to a limited extent, such as in bribery cases, in order to effectively punish corruption, which is getting more complex,'' Lim said. Plea-bargaining is an agreement whereby the prosecution offers a lighter punishment to a criminal suspect in exchange for admitting
Below is a link to an excellent piece that appeared last night on Last Week Tonight with John Oliver . The show has been focusing a lot on criminal justice issues lately. This particular piece on public defenders includes discussion of plea bargaining and innocence, including the story of Erma Faye Stewart . Hopefully, the show will soon have a piece devoted exclusively to the plea bargaining issue.
Readers of this blog will be interested to listen to the recently released podcast from The Pursuit 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 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). The podcast does a wonderful job of weaving together policy considerations and the history of plea bargaining with the story of Kevin Ring's difficult decision whether to take a plea deal in return for a significant offer of leniency. 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. As I said in my closing thoughts during the podcast, "[W]e think