Prof. Dervan Receives Grant to Study Plea Bargaining in the US, Japan, and Korea

My colleagues, Dr. Vanessa Edkins and Prof. Andrew Pardieck, and I were pleased to receive a grant from the Japan Foundation Center for Global Partnership earlier this summer to study plea bargaining in the United States, Japan, and Korea.  As part of that grant, we traveled to Tokyo, Kyoto, Osaka, and Seoul last month to meet with our co-investigators in each country and present our existing research regarding plea bargaining at several workshops and conferences. 

Our research in the United States, Japan, and Korea over the next year will focus on the decision-making process of defendants when faced with a plea offer, including the impact of sentencing differentials on innocent and guilty defendants.  This research comes at an important historical moment in each country.  In the United States, bipartisan efforts to reform the criminal justice system have begun to focus on the role of plea bargaining.  In Japan, plea bargaining has historically been illegal.  Earlier this summer, however, the country's legislature passed a law permitting plea bargaining in certain prosecutions.  Japan's criminal justice system has three years to implement the new plea bargaining law, and our research will offer important insights as the legal community considers how best to move forward.  Finally, while Korea has yet to adopt a formal plea bargaining system, the country continues to debate its merits.  As this debate continues, the data collected from our study in Seoul will offer valuable information to consider before deciding which direction the country should take in the future. 

I look forward to working with our colleagues in Japan and Korea on this remarkable project, and I will continue to offer updates regarding the research on the blog.  We intend to present the findings from our studies at symposia in Japan and Korea next summer.  For now, I wanted to share with readers some of my comments on the history of plea bargaining in the United States.  I presented these comments at several workshops and conferences as we traveled to each location.  

Bargained Justice:
Plea Bargaining and Innocence in the United States

Lucian E. Dervan
Associate Professor and Director of Faculty Development
Southern Illinois University School of Law

In 2012, United States Supreme Court Justice Anthony Kennedy wrote, “Criminal justice today is for the most part a system of pleas, not a system of trials.”  The data supports this assertion.  Today, over 97% of federal criminal convictions in the United States are the result of a plea of guilty, and the state systems are not far behind.

There are four primary types of pleas of guilt in the United States.  The first is an open plea, in which a defendant pleads guilty in return for no specific promise from the prosecution, but in the hopes of leniency from the court at sentencing because of a willingness to confess and accept responsibility for his or her actions.  The second is a charge bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to drop particular charges, especially charges that carry mandatory minimum sentences.  The third is a sentence bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to recommend, or, at least, to not oppose, a particular sentence in the case.  In each of the above pleas, the court retains the discretion to make the final sentencing decision, though the courts encourage plea bargaining by following the recommended or agreed upon disposition in the vast majority of cases.  The final type of plea in the United States addresses the issue of judicial discretion at sentencing and is called a binding plea.  In the binding plea setting, the prosecution and defense determine the sentence that will result from the plea of guilt and, if the court accepts the agreement, the court is bound to impose only that sentence.  These types of pleas are less frequent than others, because many courts reject these types of agreements as impermissibly intruding into the sentencing powers of the judiciary. 

To begin our examination of plea bargaining and its history in the United States, allow me to tell you three stories of bargained justice.  The first is about a defendant who did not take the deal and the shocking punishment he received as a result.  The second is about a defendant who took the deal and the significant benefits he received in return.  The third is about a defendant who, despite her innocence, had no choice but to plead guilty because of the power of the system’s incentives.  I believe these three stories serve as excellent introductions to our consideration of the risks and rewards of creating a criminal justice system that relies on plea bargaining.

In late October of 2015, Governor Rick Scott of Florida denied a petition for the commutation of the sentence of Orville (Lee) Wollard.  Wollard, a former human resources specialist at a large corporation in Orlando, is currently serving a 20 year prison sentence for firing a warning shot into the wall next to his daughter’s boyfriend.  The warning shot came at the end of a day in 2008 during which the boyfriend allegedly attacked Wollard, assaulted his daughter, and then refused to leave Wollard’s home.  When Wollard finally brandished his legally owned firearm, the boyfriend punched a hole in the wall, smiled, and began advancing.  Wollard finally fired a warning shot into the wall, and the boyfriend left.

Wollard was later arrested for the incident and spent a year in jail awaiting trial.  Believing his actions justifiable self-defense, Wollard rejected a plea bargain from the government that would have resulted in a sentence of only five years of probation.  Instead, Wollard decided to exercise his constitutional right to trial and present his case to a jury.  Unfortunately for Wollard, the court did not permit him to admit extensive evidence regarding the alleged abuse suffered by his daughter and family at the hands of the boyfriend.  Rather, the court merely permitted the defense to introduce evidence that the man was “no longer welcome” in the home.  After hearing the limited evidence in the case, the jury convicted Wollard of aggravated assault with a firearm, which in this case carried a mandatory minimum sentence of 20 years in prison.

There are many tragic aspects to this story.  Of particular relevance to my research is the shocking difference between the sentence offered with the plea bargain and the sentence faced after conviction at trial.  Some call this difference the trial penalty, and it is a phenomenon faced by defendants throughout the American criminal justice system when deciding how to proceed.  Of course, the vast majority of defendants never receive the tougher sentence associated with trial because they cave under the pressure.  As I mentioned a moment ago, over 97% of federal convictions in the United States are the result of a plea of guilty.  One federal judge in New York described the sentences defendants face if they reject plea offers and proceed to trial as “so excessively severe, they take your breath away.” 

Last October, a white collar defendant in Florida faced a decision regarding how to proceed in a case with yet another staggering trial penalty.  Michael Szafranski was an investment advisor in Florida who served as a “verifier” for $200 million worth of transactions related to the $1.2 billion Ponzi scheme lead by former attorney Scott Rothstein.  Rothstein had previously pleaded guilty in the case and cooperated with authorities in offering evidence against other members of the scheme.  In 2015, Szafranski was indicted on eleven counts of wire fraud and one count of conspiracy.  If convicted at trial on all counts, he faced a maximum sentence of 225 years in prison.  Prosecutors, however, offered him a deal.  If Szafranski pleaded guilty and cooperated with authorities, he would receive only thirty months in prison.  Facing a trial penalty of potentially hundreds of years, Szafranski did what anyone else would do and pleaded guilty. 

These first two stories present us with both the good and bad sides of plea bargaining.  By offering defendant’s incentives to plead guilty, the government is able to secure a conviction, while preserving valuable and scarce resources by avoiding a long and costly trial.  In cases involving multiple defendants and complex frauds, such as the Rothstein Ponzi case, plea bargaining also offers the government the ability to convince defendants to cooperate and provide evidence against others.  For defendants, particularly ones against whom there is significant evidence, plea bargaining provides a means for securing a definitive result and, potentially, a significantly reduced sentence in return relinquishing their constitutional right to trial, accepting responsibility for their actions, and cooperating with authorities.  These are the rewards acquired by prosecutors and defendants by allowing the plea bargaining system to thrive.

But there are also costs associated with bargained justice.  For defendants like Lee Wollard and Michael Szafranski, the plea bargaining system makes it extremely costly to exercise their constitutional right to trial.  Should defendants’ sentences be increased by years, decades, centuries if they reject plea offers and proceed to trial?  In considering this question, we must remember that both factually guilty and factually innocent defendants enter the criminal justice system every day.  The role of the system is to determine who is properly within its grasps and who should be found innocent and released.  But plea bargaining interferes with this fundamental process because the incentives to plead guilty are often so great that even the innocent will falsely confess if it is the rational course forward. 

For the final of the three stories, consider the fate of Erma Faye Stewart.  In 2000, Stewart, a thirty year old single mother of four, was arrested in Hearne, Texas.  At the time, Stewart lived in a public housing project.  The arrest was part of a large drug sweep based on information provided by a confidential informant.  In total, twenty-five men and two women were implicated in the narcotics scheme and each was placed in jail with a $70,000 bond.  The government quickly offered Stewart a plea bargain.  If she pleaded guilty, she would be released immediately, be placed on probation for ten years, and be fined $1,800.  If she refused, she would be held until trial, which could take months, and faced a possible sentence if convicted of five to ninety-nine years in prison.  Stewart’s attorney told her to take the deal.  With no money to bond out of jail prior to trial and no one available to watch her four children, Stewart had little choice.  Though she continued to maintain her innocence, she falsely confessed to the court and pleaded guilty.  An hour later she was released.  Stewart was not the only one to plead guilty in the case.  Of the twenty-seven people arrested, seven pleaded guilty to the charges.  When the remaining cases proceeded to trial in 2001, the government’s case quickly collapsed.  The informant had lied to prosecutors and the evidence he provided was worthless.  All those on trial were released.  For Stewart, however, the case was not over.  The prosecution refused to withdraw her guilty plea.  As a result of her narcotics conviction, she became ineligible for food stamps and educational loans and was evicted from her apartment.  Homeless, Stewart was forced to sleep outside, while her children slept in the homes of various friends each night.  While the cost of proceeding to trial was too much for Stewart, the cost of falsely pleading guilty was devastating as well. 

How did we arrive in this place?  How did bargained justice come to represent the criminal justice system in the United States?  Many assume that plea bargaining has always been a fundamental part of criminal justice in America.  The truth, however, is that until the second half of the twentieth century, plea bargaining was considered an impermissibly coercive institution by the courts.  The story of how plea bargaining rose from obscurity to dominance is a cautionary tale about the power of the plea bargaining machine and how quickly it can rise to dominance. 

To understand how we arrived in this place, we must go back to the 1700s and examine confession law.  Up until the twentieth century, guilty pleas were simply considered a form of confession that occurred inside a courtroom, instead of in a police station.  Therefore, the same law applied to each.  One of the earliest cited cases regarding confession is the 1783 British case of Rex v. Waricksall, which introduces one to the idea that all confessions at the time, including pleas of guilt, must be voluntary and may not be induced by incentives.  The court stated, “[A] confession forced from the mind by the flattery of  hope, or by the torture of fear, comes in so questionable a shape… that no credit ought to be given to it.”

            The same standard was adopted in the United States in the 1897 case of Brahm v. US.  In this case, the court stated, the “true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.”  

Despite these early precedents, beginning around the time of the American civil war, appellate courts began seeing bargains between prosecutors and defendants in return for pleas of guilt.  As might be expected based on earlier precedent, the appellate courts of the time looked with disfavor upon such bargains and case law demonstrates they were struck down as unconstitutional with great uniformity.  As an example of the language used by the appellate courts during this period, consider this quote:

[Plea bargaining is] hardly, if at all, distinguishable in principle from a direct sale of justice.”

Nevertheless, plea bargaining continued to operate in the shadows of the criminal justice system for at least two reasons.  First, plea bargaining was used as a tool of corruption in the early twentieth century as prosecutors, judges, and defense attorneys used bribes to secure “bargains” containing reduced sentences.  Second, the United States began to create a myriad of new criminal laws during this period.  In the face of swelling criminal dockets, particularly after the ushering in of the era of prohibition, the lower courts felt they had no recourse but to use bargained justice to clear their case-loads.

Despite the continued growth of plea bargaining throughout the early twentieth century, the Supreme Court never explicitly ruled that it was a permissible form of justice during this period.  In fact, in the few examples where the notion of guilty pleas and bargains was considered during this period, the Supreme Court indicated that it was uncomfortable with the concepts.  In such rulings, the Court made clear that while voluntary guilty pleas were permissible, it did not favor deals that coerced defendants into admitting guilt through threats of punishment or promises of leniency.

Finally, in 1970, a case made its way to the Supreme Court that squarely placed before the Court the issue of whether plea bargaining should be permitted under the Constitution.  The case was United States v. Brady and the matter involved a defendant who pleaded guilty because the statute under which he was charged permitted the death penalty only if recommended by a jury.  By pleading guilty, he avoided that possibility and assured that he would live.  The incentives to plead were so large, he later argued, that his plea was involuntary.  Many believed the Court would use this case as an opportunity to put a stop to plea bargaining, particularly given the earlier case law.  To the surprise of many, however, the Court determined that the defendant’s plea was voluntary and went on to state that offers of leniency and threats of punishment are permissible, as long as they do not overbear the will of the defendant.

But why did the Court rule this way given the strong language that had previously been used to strike down such deals? 

First, reality may have caught up with the Justices and they may have simply waited too long to act.  While they sat on the sidelines, plea bargaining had risen in the shadows and come to dominate the system.  By 1970, almost 90% of cases in the United States were being resolved through pleas of guilt, despite the earlier precedent and warnings.  With a system straining even to take 10% of cases to trial in 1970, the Justices certainly realized that striking down the use of plea bargaining would likely mean the collapse of the entire criminal justice system.  

Second, while overcriminalization had started us down the path of needing plea bargaining to deal with excessive criminal dockets, the Warren Court’s Due Process Revolution in the 1960’s had only made matters worse.  The new rights offered to defendants during this period resulted in an even greater need to plea bargain as trials grew more complex, costly, and lengthy.  In one study, it was demonstrated that the length of criminal trials doubled from the beginning to the end of this decade.  It is also likely that the Supreme Court hoped to ensure through its Brady decision that defendants with “real disputes,” by which they meant those for whom conviction was not almost assured, would be able to better use the rights handed down by the Warren Court in a system that used plea bargaining to clear dockets and free up resources.  

It is important to note that while the Supreme Court approved of plea bargaining in the Brady decision, it did not open the floodgates to bargained justice without any limitations.  Rather, the Court included important language in the case regarding how far prosecutors may venture in attempting to induce defendants to plead guilty.  I call this limitation the Brady Safety-Valve and it relates directly to the earlier case law we’ve examined and the requirement that plea bargains continue to be “voluntary,” even in the post-Brady world.

In the concluding paragraphs of the decision, the Brady Court discussed its vision for the use of plea bargaining in the criminal system.  The Court only wanted plea bargaining as a tool for use in cases where the evidence was overwhelming and where the defendant, unlikely to succeed at trial, might benefit from the opportunity to bargain for a reduced sentence.  The compromise of permitting plea bargaining in these cases, according to the court, would assist jurisdictions in saving resources for “cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof.”  Further, because only defendants against whom there was significant evidence of guilt would be offered deals, there would be no need to offer huge incentives.  As such, the court made clear that plea bargaining had to be voluntary and, therefore, prosecutors could not offer incentives so coercive as to overbear the defendant’s ability to act freely and decide whether to accept or reject the offer.  This limitation on the amount of pressure that may be asserted on defendants is the safety-valve.

But how do we know when the Brady safety-valve has failed?  How do we know when prosecutors are offering incentives that are too great?  The Brady Court included a litmus test for determining just this question; for determining if the safety-valve had failed.  In reaching its decision to allow plea bargaining, the Supreme Court in Brady noted that it did not believe that innocents would engage in bargained justice.  Rather, the Court believed that innocents would proceed to trial in an effort to vindicate themselves.  The Court noted, however, that if it was wrong, it would have serious doubts about the Constitutionality of plea bargaining.  Specifically, the Court stated, “we would have serious doubts about this case if the encouragements of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”

So, in recalling the three stories of plea bargaining I began my discussion with today, let me ask a question relevant to our analysis of plea bargaining.  Does plea bargaining have an innocence problem?  Are offers being made that are so enticing that they do substantially increase the likelihood an innocent will falsely condemn himself or herself?  I think the answer is yes.

We know that some innocents have pleaded guilty in the past.  For example, in 1989, Ada JoAnn Taylor was accused with five others of killing a sixty-eight year old woman in Beatrice, Nebraska.  She and four others pleaded guilty to the offense after being offered steep sentencing discounts in return.  After serving 19 years in prison, DNA evidence demonstrated that Taylor and the others were all innocent. 

In 2012, the case of Brian Banks made national headlines in the United States.  Banks, a star high school football player on his way to a professional career, was accused of rape and kidnapping by an acquaintance.  After his arrest, prosecutors offered Banks 10 minutes to decide whether to take a deal requiring him to serve 3 years in prison or proceed to trial where he would receive a sentence of 41 years to life, if convicted.  Banks took the deal, but continued to profess his innocence.  After his release, Banks was “Facebooked” by the alleged victim with a request that they meet.  Banks agreed and videotaped their conversation at an investigator’s office.  During the interview, the alleged victim admitted that she had made up the incident.  In 2012, based on the confession, Banks was exonerated.

Last year, the Houston Chronicle ran a story regarding the growth in the numbers of exoneration cases involving defendants who pleaded guilty.  In particular, the Chronicle discussed Corey Anthony Love, who pleaded guilty to a drug charge.  Love was later exonerated after the crime lab finally examined the evidence in his case and concluded that the substance he possessed during his arrest was not even narcotics.  None of these stories, of course, should be surprising given what we know about the trial penalty’s role in plea bargaining. 

Though these and other anecdotes illustrate that some innocent people have pleaded guilty in the past, it is very hard to ascertain exactly how many innocent people might have done something similar to Stewart, Taylor, Banks, and Love.  And this uncertainty has led to much debate.  Some have argued that plea bargaining has an innocence problem and such proponents have relied mainly on singular examples like the Taylor and Banks cases to support their concerns.  Others have argued that these examples and others like them are rare outliers, and, just as the Supreme stated in 1970 in the Brady decision, in almost all cases innocent defendants will not plead guilty.

Several efforts have been made by academics to add insight to this debate.  One of the most significant efforts to date has revolved around the analysis of DNA exoneration data to determine how many innocent defendants have pleaded guilty in those situations.  In 2005, for example, Professor Samuel Gross examined 340 exonerations due to newly tested DNA evidence and found that 20 had pleaded guilty.  While such DNA evidence offers us a glimpse at plea bargaining’s innocence problem, it cannot definitively resolve the debate because exoneration data likely underestimates the true extent of the issue.  Criminology studies over the years have also attempted to add insight into the debate by estimating the number of individuals in prison who might be innocent and yet pleaded guilty.  Using varied methodological approaches, these studies have concluded that between 2 percent and 8 percent of the United States’ prison system is made up of such innocents.  With the world’s largest prison system, housing over two million inmates, these estimates are extremely troubling.

Dr. Vanessa Edkins and I decided to add a new perspective and unique data to this discussion by conducting the first major psychological deception study of plea bargaining and innocence in the United States. 


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