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 weighed more heavily on the innocent than the guilty. These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail—a guilty plea. 

The article appears in the Journal of Experimental Psychology Applied, available here. 

The second is by Professors Tarika Daftary-Kapur, Kelsey Henderson, and Tina Zottoli, entitled COVID-19 Exacerbates Existing System Factors that Disadvantage Defendants: Findings From a National Survey of Defense Attorneys. From the abstract:

COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys’ perceptions of whether and how the plea process has changed during the COVID-19 pandemic. Hypotheses: This study was exploratory, and we made no a priori hypotheses. Method: We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. Results: The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. Conclusions: The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic.

The article appears in Law and Human Behavior, available here.

Earlier this year, Professor Thea Johnson of Rutgers released an article on plea bargaining and COVID-19 in The Journal of Criminal Law & Criminology Online. From the abstract:

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky. Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system – including defendants, prosecutors and judges – use fictional plea for the purposes of avoiding collateral consequences. This Article proposes that in any individual case, a fictional plea may embody a fair and just result – the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process – namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process. In this sense, fictional pleas serve as a case study in criminal justice problem solving. Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution. The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself. Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

This article can be found here. The Journal of Criminal Law and Criminology Online contains a number of COVID-19 related articles, including additional pieces regarding COVID-19 and plea bargaining. 

These three articles are important reads for those interested in learning about the ways in which COVID-19 has impacted the plea bargaining system over the last year and a half.