The Plea Bargaining Blog

United States v. Davila - Supreme Court Rules in Plea Bargaining Case

2013-06-14T10:43:00.001-04:00

Yesterday, a unanimous Supreme Court delivered the opinion in the case of United States v. Davila. The opinion was written by Justice Ginsburg. Justice Scalia filed an opinion concurring in part and concurring in the judgement, with Justice Thomas joining.

The Cornell Legal Information Institute describes the facts of the case as follows:

On February 8, 2010, a magistrate judge held a hearing with the defendant, Anthony Davila, and his attorney. At the hearing, the judge encouraged Davila to plead guilty, and on May 11, 2010, Davila pled guilty to the charges. On appeal, Davila successfully argued that the judge’s encouragement constituted a violation of Federal Rules of Criminal Procedure (“FRCP”) 11(c)(1), which generally prohibits the judge from participating in plea-bargaining. The Supreme Court granted certiorari to determine whether any judicial participation in plea-bargaining, as opposed to “prejudicial” participation, mandates automatic reversal of a conviction. The United States argues that FRCP 11(h) requires the appellate court to review Rule 11 errors under the harmless error standard, while Davila counters that an 11(c)(1) error requires automatic reversal. Furthermore, the United States sees many 11(c)(1) violations as technical and harmless, while Davila views such violations as universally prejudicial, making the government’s role effectively redundant. Both Davila and the United States argue that a ruling for the other party will undermine the finality of guilty convictions secured by plea bargains.

In its opinion yesterday, the Supreme Court reversed the lower court and held that even though the magistrate judge's participation in the plea negotiations was in "flagrant violation" of Rule 11(c)(1), "vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty."
The Court's full opinion is available here.

Human Rights Watch Report Regarding Registration Requirements for Children Who Commit Sex Offenses

2013-05-02T19:18:00.002-04:00

An interesting CNN article recently discussed a new Human Rights Watch report the examines the use of sex registration requirements to deal with children who commit sex offenses. The report is entitled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the U.S." and states in its opening:

Upon release from juvenile detention or prison, youth sex offenders are subject to registration laws that require them to disclose continually updated information including a current photograph, height, weight, age, current address, school attendance, and place of employment. Registrants must periodically update this information so that it remains current in each jurisdiction in which they reside, work, or attend school. Often, the requirement to register lasts for decades and even a lifetime. Although the details about some youth offenders prosecuted in juvenile courts are disclosed only to law enforcement, most states provide these details to the public, often over the Internet, because of community notification laws. Residency restriction laws impose another layer of control, subjecting people convicted of sexual offenses as children to a range of rules about where they may live. Failure to adhere to registration, community notification, or residency restriction laws can lead to a felony conviction for failure to register, with lasting consequences for a young person’s life.

This report challenges the view that registration laws and related restrictions are an appropriate response to sex offenses committed by children. Even acknowledging the considerable harm that youth offenders can cause, these requirements operate as, in effect, continued punishment of the offender. While the law does not formally recognize registration as a punishment, Jacob’s case and those of many other youth sex offenders detailed below illustrate the often devastating impact it has on the youth offenders and their families. And contrary to common public perceptions, the empirical evidence suggests that putting youth offenders on registries does not advance community safety - including because it overburdens law enforcement with large numbers of people to monitor, undifferentiated by their dangerousness.

The entire Human Rights Watch Report is available here. The CNN article is available here.

DOJ Report Recommends More Compassionate Release for Prisoners

2013-05-02T19:02:00.001-04:00

According to a New York Times article, a recent report by the Department of Justice Inspector General recommends that the federal Bureau of Prisons utilize compassionate release more often to save money and reduce overcrowding.

The federal Bureau of Prisons could save taxpayer money and reduce overcrowding if it better managed a program for the “compassionate release” of inmates who are dying or facing other extraordinary circumstances, according to a new report by the Justice Department’s independent inspector general.

The federal prison system does not allow the parole of inmates before their sentences are completed, but in the Sentencing Reform Act of 1984, Congress authorized the bureau to request that a judge reduce an inmate’s sentence for “extraordinary and compelling” circumstances. Such compassionate release does not have to be for reasons of terminal illness, but it generally is.

The 85-page report, released on Wednesday by Inspector General Michael E. Horowitz, examined compassionate releases from 2006 to 2011. It recommended that the bureau make greater use of its ability to release inmates who are taking up bed space — and using costly medical services — but who pose relatively little risk to the public because of factors like their age or poor health.

“We concluded that an effectively managed compassionate release program would result in cost savings for the B.O.P., as well as assist the B.O.P. in managing its continually growing inmate population and the resulting capacity challenges it is facing,” it said. “We further found that such a program would likely have a relatively low rate of recidivism.”

The recidivism rate within three years for all former federal inmates is around 41 percent. By contrast, just 5 of the 142 inmates released for compassionate reasons — or 3.5 percent — in the studied period were rearrested within three years, it said...

Charles E. Samuels Jr., the bureau’s director, said that he accepted most of the report’s recommendations, and that some improvements were already under way.

The entire article is available here. The DOJ Inspector General Report is available here.

BP Plea Deal Approved by Federal Court - $4 Billion in Fines and Penalties

2013-01-29T17:50:00.000-05:00

According to CNN, the plea agreement between BP and the U.S. Justice Department has been approved by a federal judge in New Orleans. The plea deal requires BP to plead guilty to numerous federal charges and pay $4 billion in fines and penalties.

A federal judge in New Orleans Tuesday approved a $4 billion plea agreement for criminal fines and penalties against oil giant BP for the 2010 Gulf oil spill, the largest criminal penalty in U.S. history.

U.S. District Court Judge Sarah Vance imposed the terms that the Justice Department and BP had agreed to last November, which include the oil company pleading guilty to 14 criminal counts -- among them, felony manslaughter charges -- and the payment of a record $4 billion in criminal penalties over five years.

Vance's ruling came after hearing from eight witnesses Tuesday, including family members of those killed, cleanup workers, and members of the Southeast Asian Fisherfolks Association.

The plea agreement is with the oil company and not with indicted individual employees, so it doesn't result in anyone going to jail.

Two high-ranking supervisors on the Deepwater Horizon drilling rig have been indicted on 23 counts, including manslaughter, for allegedly ignoring warning signs of a possible blowout on the rig. It caught fire April 20, 2010, resulting in the deaths of 11 workers. Those separate criminal cases remain in litigation.

The entire article is available here.

True Believers in Justice - NYT Opinion and Video

2013-01-24T17:23:00.000-05:00

The New York Times has an interesting opinion page article and related video entitled "True Believers in Justice." The article and video describe the work of public defenders in the United States.

I’d always wanted to be a lawyer, but unlike Travis Williams — the subject of this Op-Doc video — I never wanted to be a public defender. I didn’t understand how anyone could represent people who did terrible things. “Criminals” were not people I wanted to help.

Then, in 2009, while working in the legal department at A&E Television, I met Jonathan Rapping, the founder of what’s now Gideon’s Promise. He invited me to his client-centered legal training program in Alabama. At the start of training, Mr. Rapping asked each lawyer to articulate why he or she chose to become a public defender. One young man said he had a brother with Down syndrome, so he wanted to help people who could not navigate the legal system for themselves. Another said he had been arrested as a teenager, so he wanted to help kids like him who didn’t know their rights. Their stories moved me. I learned more about the true state of the criminal justice system during that week than I knew from all my years practicing law. I wanted other people to learn about what they were doing and so I decided to make this film.

I was horrified by what I learned about the criminal justice system. Innocent people, in prison for months or years, sometimes plead guilty to get out of jail; onerous sentences are too often given for minor crimes; people can lose civil rights, like the right to vote, as a result of criminal convictions. In America, a felony conviction can be a lifelong sentence because of this multitude of collateral consequences.

The entire article and the video are available here.

Aaron Swartz and Plea Bargaining

2013-01-23T11:52:00.001-05:00

The death of Aaron Swartz earlier this month sparked a significant discussion of the purposes of punishment and of prosecutorial discretion. Another important aspect of the case is plea bargaining. As detailed in the Wall Street Journal Article below, Swartz faced a significant sentencing differential in his case and difficult decisions regarding how to proceed in the face of federal charges.

Just days before he hanged himself, Internet activist Aaron Swartz's hopes for a deal with federal prosecutors fell apart.

Two years ago, the advocate for free information online, who was known to have suffered from depression, allegedly used the computer network at the Massachusetts Institute of Technology to download nearly five million articles from a fee-charging database of academic journals. To some in the Internet community, it was a Robin Hood-like stunt.

Prosecutors disagreed and threatened to put him in prison for more than three decades.

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.

Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise.

The prosecutor, he said, didn't budge...

A few years ago, Mr. Swartz caused a stir by downloading some 20 million pages of court documents from the fee-charging Pacer website by exploiting free access given to libraries. No charges were ever brought, and no crime was committed, his lawyer said. But his efforts to make online content available for free ultimately brought him into conflict with federal prosecutors.

He was arrested in 2011 and charged in a scheme in which he allegedly logged into the computer network at the Massachusetts Institute of Technology and using it to download millions of academic journal articles from a database called JSTOR, owned by a nonprofit group.

According to the indictment, Mr. Swartz bought an Acer laptop in September 2010 and hooked it up the same day to the MIT network, registering as a guest under the name Gary Host and computer name "ghost laptop." Over the next few months, he allegedly used that computer and another to automatically download journal articles, playing cat and mouse with the university and JSTOR as they tried to shut him down.

Mr. Swartz's goal, friends said, wasn't to steal the material for personal gain, but to make it publicly available. On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public.

"We are deeply saddened to hear the news about Aaron Swartz," JSTOR said on its home page Saturday. The organization said it had told prosecutors that it wasn't interested in pursuing charges against Mr. Swartz.

The trial was set to begin April 1. Mr. Swartz faced charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer. He faced as many as 35 years in prison, in addition to up to $1 million in fines.

In a superseding indictment handed up in September, prosecutors expanded the original charges to include 13 criminal counts that could have carried an even lengthier prison sentence.

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

The case also brings attention once again to the important issue of mental health and its relation to the criminal justice system. The entire Wall Street Journal article is here.

BP Pleads Guilty

2012-11-20T17:46:00.001-05:00

BP will plead guilty to fourteen criminal counts and pay $4.5 billion to resolve a U.S. DOJ criminal investigation into the 2010 Deepwater Horizon oil rig explosion and oil spill in the Gulf of Mexico. Three BP employees have also been charged criminally in the matter. According to the New York Times:

“This is unprecedented, both with regard to the amounts of money, the fact that a company has been criminally charged and that individuals have been charged as well,” Attorney General Eric H. Holder Jr. said at a news conference in New Orleans to announce the settlement.

The government said that BP’s negligence in sealing an exploratory well caused it to explode, sinking the Deepwater Horizon drill rig and unleashing a gusher of oil that lasted for months and coated beaches all along the Gulf Coast. The company initially tried to cover up the severity of the spill, misleading both Congress and investors about how quickly oil was leaking from the runaway well, according to the settlement and related charges...

Under its deal with the Justice Department, BP will pay about $4 billion in penalties over five years. That amount includes $1.256 billion in criminal fines, $2.394 billion to the National Fish and Wildlife Foundation for remediation efforts and $350 million to the National Academy of Sciences. The criminal fine is one of the largest levied by the United States against a corporation.

BP also agreed to pay $525 million to settle civil charges by the Securities and Exchange Commission that it misled investors about the flow rate of oil from the well.

In addition, the company will submit to four years of government monitoring of its safety practices and ethics....

Click here for the entire New York Times article.

Upcoming NACDL White Collar Criminal Defense College at Steston

2012-11-06T13:05:00.001-05:00

2013 WCCDC dates: January 9 - 13, 2013

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

Seminar Location:
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707

Hotel Accommodations:
Loews Don CeSar Hotel
3400 Gulf Boulevard
St. Pete Beach, FL 33706

This is an excellent conference, which I highly recommend to those in the field. Click here to learn more.

NYT Discusses Issue of Felon Disenfranchisement

2012-11-06T13:02:00.001-05:00

The NYT published an interesting op-ed regarding the issue of felon disenfranchisement this week.

The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies. They will bar about 5.85 million people from voting in this year’s election.

In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life. Nationally, nearly half of those affected have completed their sentences, including parole or probation.

Policies that deny voting rights to people who have paid their debt to society offend fundamental tenets of democracy.

But the problem is made even worse by state and local election officials so poorly informed about the law that they misinform or turn away people who have a legal right to vote.

Click here to link to the full piece.

ABA CJS Conference on International Internal Investigations - Frankfurt, Germany - December 7, 2012

2012-11-06T12:54:00.001-05:00

On December 7, 2012, the ABA Criminal Justice Section will host a conference regarding International Internal Investigations in Frankfurt, Germany.

"In today’s globalized economy and enforcement environment, internal corporate investigations are becoming complex and evolving international endeavors. This conference will bring together members of the international law enforcement community, general counsel, compliance officers, outside counsel, investigators, auditors, and legal scholars to discuss the most current, pressing, and difficult issues in this rapidly changing field.

The panelists, emanating from numerous countries around the world, will address topics including: recent trends in transnational internal investigations; strategies for selecting the right investigators and the appropriate investigatory model; best practices for collecting, reviewing, and transferring documents internationally; tactics and pitfalls when interacting with employees, internal counsel, and investigators; and strategies and concerns during disclosure and settlement."

I encourage anyone with an interest in this area to consider attending. The luncheon speaker will be Dr. Klaus Moosmayer, Chief Counsel Compliance, Siemens AG.

Click here to see the full program and link to the registration materials. The conference is very reasonable at only $125 for non-ABA members and $90 for ABA-members.

WSJ Article Discusses Prof. Dervan's Research

2012-09-24T10:39:00.003-04:00

The Wall Street Journal has an excellent feature article today about plea bargaining in the federal criminal justice system.

In mid June, under a deal with federal prosecutors, Kenneth Kassab was on the verge of pleading guilty to illegally transporting thousands of pounds of explosives when he changed his mind. A week later, he was acquitted by a federal jury.

Though Mr. Kassab maintained his innocence, he said in an interview that he had been prepared to plead guilty to avoid the risk of possibly decades in prison...

The entire WSJ article can be accessed here.

Along with the feature piece, the Wall Street Journal wrote a second insert article regarding the new plea bargaining study from myself and Professor Vanessa Edkins previously mentioned on this blog - see here.

Two university professors last year did an experiment to explore one of the more controversial questions of criminal law: How often do innocent defendants plead guilty to crimes to avoid the risk of greater punishment if they fight and lose?

The entire WSJ article regarding the plea bargaining study is here. You can also access a draft copy of the research article, which will appear in the Journal of Criminal Law & Criminology early next year, here.

Vote for Implementing Plea Bargaining Justly - Link Below

2012-09-23T15:39:00.000-04:00

Each year HiiL, a research and development institute for the justice sector, holds the Innovating Justice Awards. According to their website, "The Innovating Justice Awards are designed to stimulate innovations in the justice sector. Rule of Law professionals can identify the most promising developments in the field. Innovators are motivated to improve and to apply their innovations across borders. Nominees and applicants will be able to share their setbacks, successes and best practices." This year, my innovative idea entitled "Implementing Plea Bargaining Justly" has been nominated for most innovative idea. The introductory paragraph of the innovation is reprinted below.

Plea bargaining has become a globalised phenomenon due to growing numbers of prosecutions and constrained judicial budgets. Each year, new countries explore the implementation of plea bargaining as a remedy for their burdened criminal justice systems. Unfortunately, plea bargaining is currently being implemented without adequate reflection regarding lessons learned from the past. The challenge is to collect such lessons learned and disseminate this information to legislatures and judiciaries for consideration as they address plea bargaining reform or undertake the initial implementation of plea bargaining. The idea described here is to gather lessons learned from various countries that have adopted or experimented with plea bargaining so others might benefit from their missteps and successes. This will be achieved in two ways. First, an online clearing house will collect stories of plea bargaining from all actors in the system, including judges, prosecutors, defendants and victims. This will allow for the cataloguing of a diverse group of narratives regarding the successes and failures of plea bargaining around the world. Second, actors in the plea bargaining system from various countries will be interviewed to learn more about particular plea bargaining systems. Once all of the information and lessons learned has been gathered, the results will become part of a best practices guide, which will be disseminated to legislatures and judiciaries around the world to assist in ensuring that the efficiencies of plea bargaining are gained by those systems in need without sacrificing societal responsibilities or individual rights and liberties.

To support the effort at plea bargaining reform, please click the below link and vote for this initiative.

Click here to view the Innovating Justice Awards website, to see the entire "Implementing Plea Bargaining Justly" entry, and to vote for "Implementing Plea Bargaining Justly." Please also pass this link along to others interested in the pursuit of just plea bargaining systems around the world.

New Article on Plea Bargaining and Innocence to be Published in the Journal of Criminal Law & Criminology

2012-09-04T10:43:00.003-04:00

Professor Dervan's new article, written with Prof. Vanessa Edkins and entitled The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, will be published in volume 103 of the Journal of Criminal Law & Criminology.

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. This article discusses the study, which involved dozens of college students and took place over several months. The study revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

Click here for a downloadable version of a draft of the article.

Plea Bargains and Appellate Waivers

2012-09-04T10:39:00.001-04:00

Professor Berman's Sentencing Law and Policy Blog has a link to an article in the Denver Post discussing a federal judge's rejection of a plea agreement because it contained a waiver of appellate review. Click here to see Professor Berman's post. Click here to see the Denver Post article.

The New York Times has also weighed in on the case. In an editorial, the paper stated, "An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues." The editorial went on to state that where appellate waivers are permitted, "Our system of pleas then looks more like a system of railroading."

Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.” In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court. The judge insisted the matter go forward to trial so that the United States Court of Appeals for the Tenth Circuit could review it: “Indiscriminate acceptance of appellate waivers,” he said, “undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.” The case is scheduled for trial next month in Denver. Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Click here for the entire NYT editorial and here for a response by the U.S. Attorney for the District of New Jersey.

Great Series of Article by the New York Times Regarding Halfway Houses

2012-07-10T21:00:00.001-04:00

The New York Times has an excellent series of articles discussing halfway houses in New Jersey. Below is a portion of one of the stories in the series.

After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets. In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.

At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.

Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.

New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House.

Yet with little oversight, the state’s halfway houses have mutated into a shadow corrections network, where drugs, gang activity and violence, including sexual assaults, often go unchecked, according to a 10-month investigation by The New York Times.

Perhaps the most unsettling sign of the chaos within is inmates’ ease in getting out.

Since 2005, roughly 5,100 inmates have escaped from the state’s privately run halfway houses, including at least 1,300 in the 29 months since Governor Christie took office, according to an analysis by The Times.

Some inmates left through the back, side or emergency doors of halfway houses, or through smoking areas, state records show. Others placed dummies in their beds as decoys, or fled while being returned to prison for violating halfway houses’ rules. Many had permission to go on work-release programs but then did not return.

While these halfway houses often resemble traditional correctional institutions, they have much less security. There are no correction officers, and workers are not allowed to restrain inmates who try to leave or to locate those who do not come back from work release, the most common form of escape. The halfway houses’ only recourse is to alert the authorities.

And so the inmates flee in a steady stream: 46 last September, 39 in October, 40 in November, 38 in December, state records show.

Read the series here.

A Plea Deal Requiring Solitary Confinement in a SuperMax

2012-07-10T20:53:00.000-04:00

The New York Times has a fascinating article about a plea deal that included a requirement that the defendant serve his time in solitary confinement.

The plea bargaining was long and difficult. The defendant, Peter Rollock, the leader of a Bronx narcotics gang, had been charged in seven killings.

Federal prosecutors wanted the death penalty; any plea deal would have to include a mandatory life sentence.

But prosecutors had another demand: because Mr. Rollock, then 25, had been accused of ordering some of the killings from jail, he would be placed in solitary confinement and barred from communicating with virtually all outsiders.

Pistol Pete, as Mr. Rollock was known, agreed to the deal, and in late 2000, he was sent to the federal Supermax prison, as the Administrative Maximum, or ADX, facility in Florence, Colo., is known, and where some of the nation’s most infamous criminals are housed. With that, he might have retreated from public view forever. But Mr. Rollock, now 37, has not retreated.

In his nearly 12 years in isolation at the Supermax, he has maintained a spotless record, his lawyers say. He has spent countless hours taking adult education courses through a closed-circuit television in his cell. He has even written a novel, “Trigga,” described by his lawyers as a cautionary tale for young gangsters. His family self-published the book; it is available on Web sites like Amazon.com.

Still, Mr. Rollock’s behavior has not led to the most important change he seeks: relaxing the harsh conditions of his confinement and allowing him to enter the prison’s general population.

Read the entire article here.

New ACLU Report Regarding the Mass Incarceration of the Elderly

2012-06-18T11:25:00.002-04:00

The ACLU has issued a new report regarding the incarceration of the elderly entitled "At America's Expense: The Mass Incarceration of the Elderly". From the ACLU website.

Elderly prisoners are twice as expensive to incarcerate as the average prisoner and pose little danger to society, yet the population of elderly prisoners in the United States is exploding. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it.

This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s. Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.

A new ACLU report, “At America's Expense: The Mass Incarceration of the Elderly,” makes a number of data-driven findings and issues recommendations for reform.

Click here for the ACLU report.

Professor Dervan to Discuss Plea Bargaining on Public Radio International's "To the Point" with Warren Olney

2012-05-31T18:40:00.000-04:00

On Friday, June 1, 2012, from 2:00-3:00pm eastern, Professor Dervan will discuss plea bargaining on Public Radio International's To the Point with Warren Olney. Among other things, the show will discuss the case of Brian Banks and plea bargaining's innocence problem.
The show is syndicated nationally and available in many metropolitan markets. Further, you can link to the show here. At the show's website, you can access additional materials, listen to the show live, and link to a podcast of the show after the broadcast.

New Empirical Study Regarding Plea Bargaining's Innocence Problem

2012-05-31T18:27:00.000-04:00

I just posted an article online regarding a new empirical study conducted by myself and Professor Vanessa Edkins that examines plea bargaining's innocence problem. Below is an abstract of the piece, which is entitled The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem. You can access a free copy of the article here.

Abstract

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty.

That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.

Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

Link to the entire article here (free to download).

The Case of Brian Banks and Plea Bargaining's Innocence Problem

2012-05-31T18:16:00.001-04:00

There has been much attention recently to the case of Brian Banks in California. This is a fascinating example of the incentives created by sentencing differentials and the issue of plea bargaining's innocence problem. Ten years ago, Banks faced a stark choice between proceeding to trial, which came with a probable sentence of 41 years to life in prison, or taking a plea deal, with a promised sentence of three years. Like so many others and despite his innocence, Banks took the deal.

From NPR:

Five years in prison. Then five years of probation and wearing an electronic monitoring device. The shame of being a registered sex offender. Not being able to get a job. His dream of playing in the NFL destroyed, possibly forever.

Brian Banks, now 26, has gone through all that.Then Thursday, the California man's rape conviction was dismissed.

His accuser, who last year sent Banks a message on Facebook suggesting that they "let bygones be bygones," had been videotaped saying she lied about being raped. Wanetta Gibson's previous statements to police about the alleged 2002 incident had been the only evidence against Banks — there was no physical evidence that Banks had raped her. With the change in her story, prosecutors and a judge agreed, there was no case.Having his name cleared made for "the greatest day of my life," Banks told Southern California Public Radio's Patt Morrison. Not only does the conviction come off his record, but the electronic monitor comes off his ankle and he no longer has to register as a sex offender.

The former high school football star, who once seemed to be on the way to playing for the University of Southern California, says he now wants to pursue that lifelong dream of playing in the NFL.

Banks' story, which he's scheduled to talk about later today with All Things Considered, raises anew questions about the U.S. legal system. After his arrest, as KPCC reports, Banks' lawyer "urged him to plead no contest rather than risk a sentence of 41 years to life in prison if convicted."

Read the entire story from NPR and the All Things Considered Interview here.

Professor Dervan Testifies Before Congress

2012-04-01T15:55:00.000-04:00

On Wednesday, March 28, 2012, I testified before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security. A portion of my testimony regarding plea bargaining is below.

In closing, I would like to address one additional issue. While creating additional overlapping federal criminal statutes and significantly increasing the statutory maximum penalties for offenses related to prescription drug offenses may not result in greater deterrence of potential offenders or significantly increase sentences for those convicted, such legislation will perpetuate the phenomenon of overcriminalization and with it the continued deterioration of our constitutionally protected right to trial by jury.

Today, almost 97% of criminal cases in the federal system are resolved through a plea of guilty. As the number, breadth, and sentencing severity of federal criminal statutes continue to increase through overcriminalization, prosecutors gain increased ability to create overwhelming incentives for defendants to waive their constitutional right to a trial by jury and plead guilty. As my research has shown, a symbiotic relationship exists between overcriminalization and plea bargaining. This relationship has lead us to our current state and created an environment in which we have jeopardized the accuracy of our criminal justice system in favor of speed and convenience. In my most recent article, written in collaboration with Dr. Vanessa Edkins (Assistant Professor, Department of Psychology, Florida Institute of Technology), we discovered that more than half of innocent defendants will falsely admit guilt in return for a perceived benefit. As overcriminalization continues to create the incentives that make plea bargaining so prevalent and powerful, we must ask ourselves as a country what constitutional price is being paid when, even though we act with good and noble intentions, we create yet another law or increase yet another statutory maximum where is it not absolutely necessity to achieve our goals.

Click here for the Judiciary Committee website regarding the hearing.

Click here for my full testimony, including several articles that were attached.

Click here for the video of my testimony.

Supreme Court Hands Down Two Plea Bargaining Cases

2012-04-01T15:46:00.000-04:00

As detailed by the SCOTUSblog, the Supreme Court recently handed down two important decisions regarding plea bargaining in the cases of Missouri v. Frye and Lafler v. Cooper.

In Missouri v. Frye and Lafler v. Cooper, the Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice. Writing for a five-four majority in each case, Justice Anthony M. Kennedy reasoned that the right to counsel extends to the plea-bargaining process because of the “simple reality” that plea bargaining is so pervasive in our system such that the negotiation of a plea “is almost always the critical point for a defendant.”

Justice Antonin Scalia, who pointedly read a summary of his dissenting opinions in both cases from the bench, called the decisions “inconsistent with the Sixth Amendment and decades of our precedent.” The four dissenting Justices also criticized the majority for failing to define the parameters of the governing legal standards, which they predicted will result in many years of litigation in the “newly created constitutional field of plea-bargaining law.”

Read the entire SCOTUSblog entry here.
I found the below portion of the decision in Frye particularly interesting.

The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours "is for the most part a system of pleas, not a system of trials," Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. "To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) ("[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, be- cause the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial" (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

(Some Internal Citations Omitted). It will be interesting to see how far this logic extends, particularly given the significant attention currently being given to grand jury reform.

To read the entire opinions, click on the decisions here - Frye and Lafler.

SIU School of Law Students Work to Exonerate Man

2012-01-09T10:22:00.001-05:00

Southern Illinois University School of Law students and the Downstate Illinois Innocence Project are working to exonerate Grover Thompson. Thompson died in prison in 1996 while serving a 40 year sentence for the 1981 stabbing death of Ida White in Mount Vernon, Illinois. Below is an article from The Southern about the case.

Timothy Krajcir, who has pleaded guilty to murders in Illinois, Kentucky, Missouri and Pennsylvania, claimed responsibility for the stabbing, though some investigators question the validity of his admission. The project will present the case to the Illinois Prisoner Review Board on Wednesday in Springfield. Nichole LaForte, a third-year SIU law student from Indianapolis, said she came across the case during her Public Interest Externship. She and a fellow student attended a book signing and mentioned her interest to Paul Echols, a retired lieutenant with Carbondale Police Department whose investigations into the local cold case of the 1982 murder of Deborah Sheppard had led to Krajcir's arrest. Echols, who is now a full-time criminal justice instructor at Shawnee Community College and adjunct instructor at SIU, co-authored the book, "In Cold Pursuit: My Hunt for Timothy Krajcir- The Notorious Serial Killer." In the book he recounts the belief that Krajcir was responsible for the Mount Vernon attack. LaForte said once she made contact with Echols, she believed Thompson's innocence became clear. "Once we met with Lt. Echols and saw the evidence, we knew he was wrongfully convicted," LaForte said. She said three law students and two professors worked with the Downstate Illinois Innocence Project, Echols and Thompson's nephew to resurface the case. Echols points out in the book that he found evidence and witness reports to be shaky at best. According to the book, Thompson was discovered sleeping in a post office after the stabbing occurred. A witness and the victim described the attacker as a black male who fled through a bathroom window after a brief struggle with the witness. Echols said in the book that Krajcir's skin was described as dark and that he sometimes wore a hat, leaving "his black hair visible on the back and sides of his head." Echols said he believes the physical evidence was weak and the witness statement was faulty and had changed several times. He said the witness even admitted to him years later that he had doubts Thompson was the guilty party. LaForte said the investigation has been challenging, especially without DNA evidence. She said they have had to rely a lot on materials from his family and from 30-year-old court records. She said Echols' cooperation has really sped up the process. Once the Illinois Prisoner Review Board hears the case, the members will forward a recommendation to Gov. Pat Quinn.

Another example of the great work being done by Southern Illinois University School of Law students.

NACDL White Collar Criminal Defense College at Steston

2011-12-20T10:12:00.000-05:00

Get your applications in now for the NACDL White Collar Criminal Defense College at Stetson. This unique training program will expose white collar criminal defense attorneys to the top practitioners in the country during a multi-day hands-on program.

To learn more, click here.

Description:
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

The program runs from March 15-20, 2012.

Seminar Location:
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707

Hotel Accommodations:
Tradewinds Island Grand Beach Resort
5500 Gulf Boulevard
St. Pete Beach, FL 33706
www.tradewindsresort.com

Faculty:
A. Brian Albritton, Phelps Dunbar, LLP
Henry W. Asbill (Hank), Jones Day
Joe Bodiford, Bodiford Law
Barry Boss, Member, Cozen O'Connor
Ellen C. Brotman, Montgomery McCracken
Robert M. Cary, Williams & Connolly LLP
Vince J. Connelly, Mayer Brown
Lucian E. Dervan, Southern Illinois University School of Law
Donna Lee Elm, Federal Public Defender, Middle District of Florida
James E. Felman, Kynes, Markman & Felman, P.A.
Jack E. Fernandez, Zuckerman Spaeder, LLP
Todd Foster, Cohen & Foster, P.A.
David Gerger, Gerger and Clarke
Nina J. Ginsberg , DiMuro Ginsberg, PC
Lawrence S. Goldman, Law Offices of Lawrence S. Goldman
John Wesley Hall, John Wesley Hall Little Rock Criminal Defense
A. Jeff Ifrah, Ifrah Law
Anthony A. Joseph, Maynard Cooper and Gale, PC
Frank Klim, Stetson University College of Law
John F. Lauro, Lauro Law Firm
Bruce Lyons, Lyons and Sanders Chartered
Terence F. MacCarthy, Distinguished Professorial Lecturer, Stetson University College of Law
Edward A Mallett, Mallett and Saper, L.L.P.
Bruce Maloy, Maloy, Jenkins, & Parker
David Oscar Markus, Markus and Markus, PLLC
James McComas, Retired
Michael D. Monico, Monico, Pavich and Spevack
Jane W. Moscowitz, Moscowitz and Moscowitz, P.A.
William Nortman, Akerman
Kevin J. Napper, Carlton Fields
Cynthia Eva Orr, Goldstein, Goldstein and Hilley
Patricia A. Pileggi, Schiff Hardin, LLP
Barry J. Pollack, Miller & Chevalier
Mark P. Rankin, Shutts and Bowen, LLP
Shana-Tara Regon, NACDL
Michele A. Roberts, Skadden Arps
Slate Meagher and Flom, LLP
Charles H. Rose III, Stetson University College of Law
Kerri L. Ruttenberg, Jones Day
Gail Shifman, Shifmangroup
Adam P. Schwartz, Carlton Fields
William N. Shepherd, Holland & Knight LLP
Neal R. Sonnett, The Law Office of Neal R. Sonnett, P.A.
Ed Suarez, The Law Offices of Ed Suarez, P.A.
Larry Thompson, Former U.S. Deputy Attorney General and Vice President of PepsiCo
Gary R. Trombley, Trombley & Hanes
Albert A. Vondra, PricewaterhouseCoopers, LLP
Morris “Sandy” Weinberg, Jr., Zuckerman Spaeder LLP
Peter H. White, Schulte Roth & Zabel LLP
Solomon L. Wisenberg, Barnes & Thornburg LLP

Blagojevich Sentenced to 14 Years in Prison

2011-12-07T15:22:00.001-05:00

Former Illinois Governor Rod Blagojevich was sentenced in federal court in Chicago today to 14 years in prison for corruption. Prosecutors had hoped for a sentence of between 15-20 years. In ruling, the federal judge noted Blagojevich was "late" in accepting responsibility for his crimes.

It is worth noting that Blagojevich is the second consecutive Illinois governor to go to federal prison for corruption. Former Illinois Governor George Ryan is currently serving a federal prison sentence.