The Plea Bargaining Blog

My new piece, entitled  C lass v. United States: Bargained Justice and a System of Efficiencies , is now available for free download on SSRN.  If you are interested in the state of plea bargaining research, including law and psychology research, and where the Supreme Court might go next, you'll enjoy this new article.  The piece ends with these words: We know today, based on the research described above along with a steadily increasing number of real-world examples, that the incentives to plead guilty can be overpowering—indeed, so overpowering that even innocent defendants will sometimes take this path. When the Court addresses the fundamental question of defendant decisionmaking, it will have to wrestle with this reality and decide how best to proceed with the development of its plea-bargaining jurisprudence. Recall that in Brady, the Court said, “[W]e would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency subst...

The Ame rican Bar Association Criminal Justice Section Fall Institute occurred on November 2, 2018, in Washington, DC. It was a wonderful event that featured a host of interesting and timely panel sessions. I was honored for the opportunity to open the conference with an address examining the history of plea bargaining. During my remarks, I also announced the launch of a new  ABA Criminal Justice Section  Task Force. The Plea Bargaining Task Force will bring together a diverse group of individuals representing various institutions and perspectives in the criminal justice system to examine plea bargaining and provide recommendations regarding the best path forward.  My remarks were followed by an address by Judge Jed Rakoff of the United States District Court for the Southern District of New York. In his address, Judge Rakoff discussed the many issues presented by the dominance of plea bargaining in our current system. His remarks were then followed by a panel discus...

I hope you will join me in DC next week for the ABA Criminal Justice Section Fall Institute.   Due to the generosity of our sponsors, all CLE programming is complimentary and participants may register on-site.    The Institute begins with a spectacular White Collar Crime Town Hall on Thursday, November 1 from 3:30pm-5:00pm at the Mayflower Hotel in Washington, D.C.   Below is a description of the Town Hall and the exceptional panelists who will discuss The Role of the Media in White Collar Criminal Investigations and the Mueller Probe. The panelists will first examine the role of the media in these investigations generally, including the obligations/interests of the media in protecting the integrity of investigations, the tools available to prosecutors and defense attorneys to address media coverage during the investigative stage, and the tools and standards for fair trial protections due to pretrial media exposure. Then, the panel will delve into the Mue...

On July 20, 2018, a court in Fairfax County, Virginia, approved of a " legal fiction plea ."  The decision, from the Nineteenth Judicial Circuit of Virginia, begins with the following explanation of the issue and its holding: The issue before this Court is whether a criminal defendant may knowingly plead guilty to a crime that he factually did not commit, and whether the Court can convict him based on such a plea.  This Court refers to such pleas as "legal fiction pleas," and holds that a defendant may enter such a plea as part of a plea agreement to avoid a potential conviction of a more serious crime or imposition of a worse sentence.  As long as a defendant fully understands that he could not otherwise be convicted of the lesser crime and asserts that he is entering the plea nonetheless for his own perceived benefit, courts should accept such pleas.  It is worth noting that, according to the court, Virginia generally does not require "the introduction o...

Psychology, Public Policy and Law has recently released a special issue on guilty pleas.  The collection of articles, edited by Miko Wilford and Allison Redlich , is an excellent read and examines plea bargaining from various perspectives. My latest article entitled  Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty is contained in the special issue.  This piece considers the impact of innocence, collateral consequences, and pretrial detention on plea decisions.  Full results from the study are contained in the article, but I'll note here one particularly troubling finding:  the rate of innocent individuals who plead guilty tripled in our pretrial detention scenarios .  Below are abstracts and links to each article in the collection.  Special Issue of Psychology, Public Policy and Law : Guilty Pleas Edited by Miko M. Wilford and Allison D. Redli...

The NACDL released an important report last week detailing the impact of the trial penalty, which is the difference between the sentence a defendant receives in return for pleading guilty and the often much larger sentence he or she receives in return for exercising his or her constitutional right to trial.  From the NACDL press release: The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in ...

In recent days, two notable pieces have appeared in major U.S. newspapers discussing plea bargaining's innocence problem.  The first appeared in  The Washington Post , entitled "How to make an innocent client plead guilty." The piece, written by Jeffrey D. Stein, a public defender in Washington, D.C., discusses the power of plea bargaining, especially when the defendant is subjected to pretrial detention. The conversation almost always begins in jail. Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made. Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week. And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage. Your clie...