The Plea Bargaining Blog

A recent opinion from the New York Court of Appeals contains a very interesting discussion of the trial penalty.  In the case, People v. Martinez , Slip Opinion 08456 (NY Court of Appeals, Nov. 19, 2015), the defendant rejected a plea offer of 10 years probation.  After his conviction at trial, he was sentenced to 10 to 20 years in prison.  The defendant then appealed, arguing the trial sentence was "vindictive."  While the majority upheld the sentence, the dissent argued that the trial judge should be required to explain such a sentencing differential on the record to ensure the defendant is not being punished for exercising a constitutional right.  Excerpts from the majority and dissenting opinions are below. From the majority opinion: Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is retried, convicted, and given a greater sentence t...

Earlier this year, Japan's House of Councillors passed a Bill Relating to Criminal Justice Reform . Japan's House of Representatives was scheduled to take up the bill during the same session of the Diet, but controversy ensued. The controversy centered around the bill's creation of a formal plea bargaining system in Japan. Given how long we have been relying on bargained justice in the United States, it might seem as though the entire world is dealing in bargains. In many countries, however, including Japan (at least for the moment), plea bargaining is prohibited.   In the wake of the controversy, I was honored to be invited to Tokyo, Japan to deliver a lecture to the Japan Federation of Bar Associations. My lecture focused on both the history of plea bargaining in the United States and ways Japan can learn from this history in beginning down the path of bargained justice. The lecture will shortly be published in Japanese. For readers of this blog, I post below the E...

The Washington Post has an excellent article tracking the evolution of the reform efforts announced by Eric Holder at the American Bar Association annual meeting in August 2013.  The entire article is available here .

I'm pleased to let my readers know that tomorrow morning's Wall Street Journal will include an opinion piece I wrote regarding plea bargaining and the trial penalty.  The article is entitled "The Injustice of the Plea-Bargaining System."   Below is the introductory paragraph.  The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system. With incarceration rates in the U.S. five- to 10-times higher than Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes. Yet none directly addresses plea-bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty. The entire piece is available here . 

According to  Reuters , a judge approved Britain's first Deferred Prosecution Agreement today.  The below is from the Serious Fraud Office's (SFO) press release.   The Serious Fraud Office's first application for a Deferred Prosecution Agreement was today approved by Lord Justice Leveson at Southwark Crown Court, sitting at the Royal Courts of Justice. The counterparty to the DPA, Standard Bank Plc (now  known as ICBC Standard Bank Plc) ("Standard Bank"), was the subject of an indictment alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. This indictment, pursuant to DPA proceedings, was immediately suspended. This was also the first use of section 7 of the Bribery Act 2010 by any prosecutor. As a result of the DPA, Standard Bank will pay financial orders of US$25.2 million and will be required to pay the Government of Tanzania a further US$7 million in compensation. The bank has also agreed to pay the SFO's reasonable cos...

Law360   is reporting that a Florida investment adviser who served as a "verifier" for $200 million worth of transactions related to the   Scott Rothstein   $1.2 billion Ponzi scheme has been sentenced to 30 months in prison.  Given the original charges in the case and the significant loss figures associated with his actions, the investment adviser, Michael Szafranski, faced a possible sentence of 20 plus years in prison if he had proceeded to trial and lost.  The fact that the government was willing and able to offer him a plea deal that resulted in only 30 months in prison indicates once again the immense leverage available to the government to structure favorable bargains, particularly in white collar cases.   Szafranski was originally charged with 11 counts of wire fraud and one count of conspiracy.  Each wire fraud count carried a potential 20 year sentence and the conspiracy count carried a potential 5 year sentence.  Therefore, the max...

The New York Times has an interesting opinion piece today from David Brooks regarding " The Prison Problem ."  The article focuses on over-incarceration and examines what might be driving this phenomenon outside of the usual suspects, such as the "war on drugs" and mandatory minimum sentences.  The piece argues that while the "war on drugs" and mandatory minimums certainly played their roles, there is also much to be said for the impact of changes in prosecutorial behavior over time.  In discussing the role of prosecutors, Brooks mentions the role of plea bargaining. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms. Brook's piece is well worth a read.  I look forward to a future opinion piece from Brooks look...

I was honored to serve as the moderator of a recent discussion on Capital Hill regarding overcriminalization.  The discussion occurred on September 16, 2015 and was entitled " Striking the Right Balance: Criminal v. Civil Law Sanctions ."  The program description is below: How should our federal government strike the right balance between the use of criminal law sanctions instead of civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted?  The event began with an opening address by Norman Reimer, Executive Director of the NACDL.  That was followed by a panel discussion, which included myself as moderator, Adeel Bashir (Appellate Division, Office of the Federal Defender, M.D.Fla.), John Lauro (Lauro Law Firm), and Marjorie Peerce (Ballard Spahr).  It was a wonderful event, and I encourage you to watch the below video of the discussion.  It included several ...

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.

Deputy Attorney General Sally Yates has issued a memorandum regarding " Individual Accountability for Corporate Wrongdoing ."  The memorandum describes important new priorities and policies regarding the prosecution of individual employees, not just corporations, in cases involving corporate crime. From the memorandum: Fighting corporate fraud and other misconduct is a top priority of the Department of Justice. Our nation's economy depends on effective enforcement of the civil and criminal laws that protect our financial system and, by extension, all our citizens. These are principles that the Department lives and breathes- as evidenced by the many attorneys, agents, and support staff who have worked tirelessly on corporate investigations, particularly in the aftermath of the financial crisis. One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is importan...

Registration is now open for the Inaugural ABA Criminal Justice Section  Global White Collar Crime Institute , which will take place November 19-20, 2015 at the  Ritz-Carlton Shanghai Pudong  in Shanghai, China.  The event is done in collaboration with the KoGuan Law School of the Shanghai Jiao Tong University.  I am honored to serve as the Institute Chair and hope to see many of my blog readers at the event. This conference will be an incredible opportunity to interact with prosecutors, judges, defense counsel, accountants, in-house counsel, and academics from the U.S., China, and other parts of the world as they convene to discuss the complexities of international white collar crime.   More from the  registration website : The goal of the conference is to bring the energy and excitement of our previous international white collar crime conferences to Asia and create unique opportunities for our participants to network and explore the legal ...

I have just released a  new article  discussing the sentencing of Jordan Belfort, better known as the "Wolf of Wall Street."  I use this case as a mechanism for considering how white collar sentencing has evolved from the 1980s until today.  In particular, the article examines the growth in uncertainty and inconsistency in sentences received by major white collar offenders over this period of time and considers some of the reasons for this trend.  The article also examines the impact of recent amendments adopted by the U.S. Sentencing Commission on white collar sentences. Lucian E. Dervan,  Sentencing the Wolf of Wall Street: From Leniency to Uncertainty , 61 Wayne Law Review -- (2015). Abstract: This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a veh...

Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC.  The roundtables will be held on  Thursday, October 22, 2015 from 12:30-3:00pm  at the  Loews Madison Hotel , and the ABA will provide sandwiches and drinks for lunch.  The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel.  The entire ABA CJS Fall Institute Program is available here . We hope you will consider  workshopping  your criminal justice works-in-progress at these roundtables.  Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you’re interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at ...

The New York Times Magazine has an excellent article entitled " The Bail Trap ."  The article discusses the relationship between bail, innocence, and false pleas of guilt.  Below is a portion of the article: With national attention suddenly focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. ...

I recently posted a new article to SSRN entitled " Sentencing the Wolf of Wall Street: From Leniency to Uncertainty ."  The article, which is based on my presentation during a recent symposium, examines the Jordan Belfort ("Wolf of Wall Street") prosecution as a case study for considering how white collar sentencing has changed from the 1980s to today.  I also delivered a lecture regarding white collar sentencing based on this article at the recent 2015 U.S. Sixth Circuit Conference in Detroit, Michigan. The abstract for the piece is below. This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively len...

I recently posted a new article to SSRN entitled " 'White Collar Crime': Still Hazy After All These Years ."  The article is authored with Professor Ellen S. Podgor of Stetson University College of Law. Below is the abstract. With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice,...

For those looking for some summer reading regarding plea bargaining, I recommend Allison Redlich and Catherine Bonventre's article entitled "Content and Comprehensibility of Juvenile and Adult tender-of_Plea Forms: Implications for Knowing, Intelligent, and Voluntary Guilty Pleas." The Abstract reads: The overwhelming majority of criminal convictions in the United States are obtained through guilty pleas. To be constitutionally valid, guilty pleas must be knowing, voluntary, and intelligent. The information the defendant relies on to make a knowing, voluntary, and intelligent plea decision may be conveyed to the defendant through several modes, including but not limited to communication with defense counsel. Here, we address a mode that to our knowledge has previously not been systematically examined—tender-of-plea (ToP) forms. ToP forms are written instruments that inquire into whether the defendant understands and appreciates the plea decision and is capable of ente...

Politico Magazine has an interesting piece by Anthony Romero, Executive Director of the ACLU, and Mark Holden, General Counsel of Koch Industries, entitled "A New Beginning for Criminal Justice Reform."  In the piece, the two argue in favor of the bipartisan Safe, Accountable, Fair and Effective Justice Act (SAFE Justice Act) introduced in Congress on June 25, 2015 by Reps. Jim Sensenbrenner (R-Wis.) and  Bobby Scott (D-Va.). The piece begins: The criminal justice system’s problems are evident all around us. Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety. From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes. Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on pr...

The New York Law Journal has a piece entitled "The Dynamics of the Plea Bargain" that is well worth a read.  The article is an edited version of a speech delivered by Paul Shechtman, partner at Zuckerman Spaeder, on June 2, 2015 at the State University in Albany to the Research Coordination Network on Understanding Guilty Pleas .  The Research Coordination Network is a group funded by the National Science Foundation with the goal of fostering new research on the process that generates guilty pleas.  I am honored to be a member of this group. Paul Shechtman's talk begins: I offer these comments as a lawyer and teacher who has practiced and thought about plea bargaining for more than 30 years. There was a day when I could run a regression analysis but that time is long gone. I will convey my thoughts about plea bargaining by telling you three stories. The first story dates to 1970, well before I began practicing law. That year, the U.S. Supreme Court decided Baldw...

The New York Times has an interesting article examining the federal supermax prison in Florence, Colorado, known as the ADX.  As noted in the article, the prison houses many infamous criminals, including Ted Kaczynski, Eric Rudolph, Zacarias Moussaoui, Ramzi Yousef, and Terry Nichols.  Little is known about the facility and its operation.  Using interviews with former inmates at the ADX, information obtained as part of an ongoing lawsuit against the facility, and other sources, the article offers readers a glimpse inside. The ADX can house up to 500 prisoners in its eight units. Inmates spend their days in 12-by-7-foot cells with thick concrete walls and double sets of sliding metal doors (with solid exteriors, so prisoners can’t see one another). A single window, about three feet high but only four inches wide, offers a notched glimpse of sky and little else. Each cell has a sink-toilet combo and an automated shower, and prisoners sleep on concrete slabs topped with t...

Deferred prosecution agreements (DPAs) are now a common aspect of the corporate criminal enforcement landscape.  While DPAs do not result in a criminal conviction for the corporation, these types of agreements share many of the same characteristics as plea bargains.  In a recent article featured in the New York Review of Books , Judge Jed Rakoff discusses a recent book published by Professor Brandon Garrett entitled Too Big to Jail: How Prosecutors Compromise with Corporations . From Judge Rakoff's review: So-called “deferred prosecutions” were developed in the 1930s as a way of helping juvenile offenders. A juvenile who had been charged with a crime would agree with the prosecutor to have his prosecution deferred while he entered a program designed to rehabilitate such offenders. If he successfully completed the program and committed no other crime over the course of a year, the charge would then be dropped. The analogy of a Fortune 500 company to a juvenile delinque...

Many people have listed to the hit podcast " Serial " by now.  For those who have not, it is an extremely interesting show detailing the prosecution of Adnan Syed for the 1999 murder of his former high school girlfriend. This weekend, The New York Times published an Op-Ed about the case.  This is not surprising given the recent publicity around the Podcast.  What was surprising, however, was that the Op-Ed dealt less with the evidence against Syed and more with the fact that he did not plead guilty. From the introduction: OUR modern criminal justice system is designed to avoid jury trials. Through investigation and considered use of discretion, prosecutors are expected to charge only when there is sufficient evidence to convict. Once charged, defendants are encouraged to plead guilty in part to avoid a “trial penalty” — a longer sentence after a trial, often a much longer one. And 95 percent of them do just that. The Supreme Court acknowledged this reality in 2012...

Are you interested in researching the processes that generate guilty pleas? Are you currently studying guilty pleas or plea bargaining (e.g., criminal sentencing outcomes)?   The Research Coordination Network (RCN) on Understanding Guilty Pleas is hosting a research workshop June 2-3, 2015 , at the University at Albany, in Albany NY. We are seeking doctoral-level graduate students and recent Ph.D. graduates from any discipline interested in participating. This is an excellent opportunity to network with an interdisciplinary group of well-known scholars keenly focused on making groundbreaking progress in this important but under-researched area. The RCN, funded by the National Science Foundation and led by Professor Shawn Bushway, was created to invigorate interdisciplinary research on guilty pleas and related decision-making processes. The RCN includes three cores focused on prosecutorial, defense, and courtroom workgroup decision-making. More about the RCN and its members can...