Showing posts from 2021

New Law & Psychology Blog - The (In)Justice System Blog

There is a new blog on Psychology Today  that readers will find a valuable resource. The blog, called the (In)Justice System , describes itself as "Empirically evaluating today's criminal justice system and avenues for reform." The blog is authored by Dr. Miko Wilford of the University of Massachusetts Lowell. Dr. Wilford is an award winning and prolific scholar who conducts research in various areas of the criminal system, including plea bargaining. In fact, I believe this new blog will focus much of its attention on our current system of bargains. The first blog entry from the (In)Justice System blog is entitled " Avoiding Jury Duty Could Be a Thing of the Past ." The entry focuses on the disappearing trial and the rise of plea bargaining. After introducing the reader to the right to trial and the impact of plea bargains on trial rates, Dr. Wilford discusses some of the many negative consequences of a system domi nated by pleas. In particular, the entry discu

New Plea Bargaining Articles re the Impact of COVID-19

Two new articles have been released discussing the impact of COVID-19 on the plea bargaining system.  The first is by Professors Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland, entitled Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic . From the abstract: Over 95% of criminal convictions in the United States are the result of guilty pleas. Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible. Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty. The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention. While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19

The New York Times Magazine - I Write About the Law. But Could I Really Help Free a Prisoner? by Emily Bazelon

Emily Bazelon has an excellent article in The New York Times Magazine that readers will enjoy. The article details how she and her sister, Lara Bazelon, worked to exonerate Yutico Briley. Terry Gross described the events as follows on FRESH AIR.  While serving a 60-year sentence with no possibility of parole for an armed robbery in New Orleans that he insisted he didn't commit, Yutico Briley wrote dozens of letters to lawyers, innocence projects and anyone he thought could help him get out of prison. In 2019, after seven years in prison, he heard my guest Emily Bazelon interviewed on FRESH AIR. We were talking about her book "Charged," about how prosecutors had gained breathtaking power in the past 40 years and used it to put more people in prison, ripping apart poor communities, mostly Black or brown. Briley wrote to her, but she didn't even read his letter until a couple of months later when a librarian in Oregon, who corresponded with Briley through a support prog

New Piece on Plea Bargaining and the Psychology of False Pleas and False Testimony

I recently published a new article discussing plea bargaining and some of the insights that have been gained from psychological research into defendant decision-making in recent years. From the abstract for the piece: Plea bargaining is an institution that has come to dominate the American criminal justice system. While little psychological research was done in the decades following the 1970 Supreme Court decision that approved the practice of plea bargaining, many advances have been made in this field in the last decade. We now know, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain. Further, we know that the presence of counsel can actually increase, not decrease, the prevalence of false pleas of guilty. We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent. Finally, we know that defendants will not only falsely plead guilty, but that they will also falsely t

The History and Psychology of Plea Bargaining and the Trial Penalty

In 2019, the Federal Sentencing Reporter published a special two volume collection on plea bargaining and the trial penalty. You can review the table of contents from the volumes on the journal's website . It is a wonderful collection of pieces exploring this issue from various perspectives.  As part of the collection, I was invited to write about the history of plea bargaining and the issue of innocence in a piece entitled, Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, 31 Federal Sentencing Reporter 239-247 (2019). A draft of this article is now available on SSRN. The Article's Abstract: This article beings with an examination of the historical rise of plea bargaining and discusses how bargained justice emerged from a deep common law tradition that had rejected the use of incentives to induce confessions of guilt. This introduction to the subject concludes by considering the language used by the Supreme Court in 1970 to diverge from th

Report Regarding Guilty Pleas in England and Wales

A recent report by the Sentencing Academy regarding pleas of guilty in England and Wales contains interesting information regarding the practice of plea bargaining across the pond.  From the report: Most defendants are convicted after entering a guilty plea, rather than following a trial. In 2019/20, 78.6% of cases concluded in the magistrates’ courts were resolved by a guilty plea (Crown Prosecution Service, 2020, p. 31). The figure was slightly lower (73.3%) in the Crown Court (Crown Prosecution Service, 2020, p. 34). Defendants plead guilty for a variety of reasons. For example, some may experience remorse and express this through a guilty plea. Many defendants perceive a high likelihood of being convicted at trial and wish to secu re the reduced sentence available if they plead guilty. Others may plead guilty to avoid the stress arising from going to trial (Gormley and Tata 2020).  While not as high as U.S. guilty plea rates (which can reach almost 98% at the federal level), these

ABA Criminal Justice Section Plea Bargaining Task Force - Call for Comment

  Call for Comment   American Bar Association Criminal Justice Section Plea Bargaining Task Force The American Bar Association Criminal Justice Section has created a task force to more closely examine the role of plea bargaining in our modern system of criminal justice.  Its goal is to develop both broad policy oriented goals for the criminal justice system and, where necessary, specific recommendations for changes in the way plea bargaining operates within the larger criminal justice environment.  These issues will be examined from the perspective of all those involved in the criminal justice system, including prosecutors, defenders, defendants, judges, victims, and others. To date, the task force has had the opportunity to hear from a number of advocacy groups, researchers, and policy makers regarding the benefits of the plea bargaining system, the negative consequences resulting from our reliance on plea bargaining and the current structure of the plea bargaining system, and

Dervan Publishes New Research re False Testimony and False Pleas by the Innocent in the U.S., Japan and S. Korea

Several years ago, Japan passed a new law that allowed the use of formal plea bargaining for the first time. Key to the law was a provision that attempted to limit the risk of false pleas by the innocent by requiring that those pleading guilty provide information about a crime committed by a third party. This prevented the type of single defendant plea bargains that are so common in the United States. At the same time, South Korea continued to debate whether they should follow a similar path and permit the use of plea bargaining. All the while, bargained justice continued to dominate the U.S. criminal justice system. The new legislation in Japan and discussions in South Korea led to the creation of a collaborative research study that brought together scholars from the United States, Japan, and South Korea to examine the innocence issue from a global perspective and test through psychological deception studies whether Japan's attempts to prevent false pleas of guilty would be effect