The Plea Bargaining Blog

Plea Bargaining Institute Files Amicus Brief with U.S. Supreme Court

2025-12-15T14:54:00.001-05:00

The Plea Bargaining Institute has filed its first amicus brief with the United States Supreme Court in the case of Hunter v. United States. The case involves a defendant who gave a blanket waiver of the right to appeal as part of a plea bargain but later sought to challenge his sentence as unconstitutional. The case raises important questions regarding what limits or guardrails should be imposed on plea bargaining. The brief included discussion of studies regarding the reliability of pleas of guilty, the forces leading defendants to plead guilty, the phenomenon of false pleas of guilty by the innocent, and defendants’ knowledge and understanding of plea bargaining and their plea agreements.

From the PBI amicus brief summary of argument section:

That the Hunter case concluded with a plea of guilty is not surprising. As acknowledged by this Court in Lafler v. Cooper, 566 U.S. 156, 170 (2012), “[C]riminal justice today is for the most part a system of pleas, not a system of trials.” It is also unsurprising that Hunter’s plea bargain included a waiver of the right to appeal his conviction and sentence. As noted by the American Bar Association in the Plea Bargain Task Force Report (2023), demands for waivers during plea bargaining that go well beyond the trial right are common. See ABA CJS, Plea Bargain Task Force Report, at 25 (Feb. 22, 2023). In accepting the Hunter case, the Court has the important opportunity to consider the validity of waivers of rights, including appellate rights, in return for plea bargains. In contemplating this issue, Amicus encourages the Court to recognize that plea bargaining is not inherently reliable and, therefore, the imposition of limitations and guardrails for plea bargaining practices is vital to the establishment of an accurate, just, and constitutional plea bargaining system.

Far too often in considering issues such as those presented in the Hunter case, the Court has conducted its analysis from the unsupported position that plea bargaining is inherently reliable. In Brady v. United States, 397 U.S. 742 (1970), for example, the Court briefly considered the risk that plea bargaining might have an innocence problem but dismissed these concerns and concluded that there was no reason to doubt the accuracy of the plea. See Brady, 397 U.S. at 758. In 1975, in the case of Menna v. New York, 423 U. S. 61 (1975), the Court more explicitly described its starting point for analyzing how plea bargaining jurisprudence might evolve. In Menna, the Court stated, “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” See Menna v. New York, 423 U. S. 61, 62 n.2 (1975). From this flawed starting place of faith regarding the reliability of guilty pleas, it is easy to see why so few limitations and guardrails have been imposed on plea bargaining practices in the 55 years since Brady.

Research over the past decades, however, has now clearly demonstrated that individuals plead guilty for many reasons, some of which have little or nothing to do with their actual guilt. This research has also added meaningfully to our understanding of plea bargaining’s innocence problem and the psychological forces behind the significant number of false pleas of guilty by the innocent. Finally, research during this time has also raised troubling questions regarding defendants’ actual knowledge and understanding of the plea bargaining process and the deals into which they enter. These findings lead squarely to the conclusion that plea bargaining is far from a reliable indicator of actual guilt.

In undertaking its review of the Hunter case, therefore, the Court should correct the unsupported assumption that plea bargaining is inherently reliable. Instead, the Court should begin its analysis of this and all future plea bargaining cases by acknowledging that plea bargaining is not inherently reliable. The Court should also take this opportunity to recognize, as encouraged by the American Bar Association Plea Bargain Task Force Report (2023) and ABA Resolution 502 (2023), that “innocent people sometimes plead guilty to crimes they did not commit.” See ABA CJS, Plea Bargain Task Force Report, p.20 (Feb. 22, 2023); ABA Resolution 502 (2023); see also American Bar Association, The Cost of Plea Bargains: Reflections and Recommendations from the ABA Plea Bargain Task Force (Lucian E. Dervan, Russell D. Covey, & Thea Johnson eds. 2024).

This new starting position from which to undertake plea bargaining jurisprudential analysis will have important positive impacts on the criminal system. A plea bargaining system that is not inherently reliable, one in which innocent defendants falsely plead guilty, and one in which defendants lack true knowledge regarding the process and to what they have agreed is a plea bargaining system in need of meaningful limitations and guardrails. That work can begin in the Hunter case as the Court considers how to protect a defendant’s constitutional rights and the Constitution itself in a system where most people, including the innocent, plead guilty to an agreement containing a non-negotiable blanket waiver of appellate rights. Whatever result the Court ultimately reaches in Hunter regarding where the limits and guardrails should fall, Amicus urges the Court to deliver its opinion in a manner that acknowledges and considers the realities of our modern plea bargaining system.

The entire PBI amicus brief, along with other briefing in the case may be found on the U.S. Supreme Court docket.

SDNY Rules Trial Penalty Unconstitutional

2025-06-13T14:34:00.003-04:00

In March 2025, Judge Jed Rakoff of the Southern District of New York issued an opinion challenging the constitutionality of what has been described as the "trial penalty." From the opinion:

Why do so few cases go to trial? One reason is the so-called “trial penalty.” Since a prosecutor typically charges -- and is currently required to charge at the outset -- the most serious crimes she can prove, a plea bargain to a lesser charge reduces the risk of the often much higher penalty a defendant would face if convicted at trial. And given the prevalence of legislatively-prescribed mandatory minimum prison terms, there is little a judge can do about this in many cases. Moreover, even in those cases where the charges do not carry mandatory minimum prison terms, the Sentencing Guidelines (“Guidelines”) effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty, and by a third point if, in the Government's view, the defendant has pled guilty quickly enough to permit the prosecutor to avoid preparing for trial. U.S.S.G. section 3E1.1. While the underlying theory of the two-point reduction is that a guilty plea evidences, and rewards, a defendant's remorse, the third point reduction is justified simply on the ground of saving prosecutorial resources.
...
[T]he Court has reached the conclusion that [the third] of those three points, effectively added to the calculated offense level because of the failure of the defendant to save the Government resources, pursuant to section 3E1.1(b) of the Guidelines, ought not even be included in the Guidelines calculation at all, because in reality it is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial. The Court thus issues this pre-sentence Opinion to inform the parties of this conclusion, so that, if the Government disagrees, it can be heard at the time of sentencing.
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In this Court's view, section 3E1.1(b) violates the Sixth Amendment right to trial in at least two ways. First and foremost, section 3E1.1(b) in its entirety effectively penalizes a defendant who, whether innocent or guilty, proceeds to trial based on his decision to exercise his Sixth Amendment right to trial. But whereas section 3E1.1(a) at least arguably justifies this imposition as a reward for a defendant's demonstrating genuine remorse, the only ground given for imposing the additional penalty under 3E1.1(b) is that the defendant failed to save the Government from having to prepare for trial. This cannot possibly be an adequate ground for penalizing a defendant for the exercise of a constitutional right. Worse still, on this flimsy basis section 3E1.1(b) penalizes a defendant who just takes too long to decide whether he wants to assert his constitutional right to trial, even if he ultimately waives it.
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Section 3E1.1(b) also violates the Sixth Amendment for the related reason that it conditions the application of the one-level reduction on a motion by the Government. Pursuant to section 3E1.1(b), a district judge cannot apply the one-level reduction except “[u]pon motion of the government.” U.S.S.G. section 3E1.1(b); see also U.S.S.G. section 3E1.1 cmt. 6 (“[A]n adjustment under subsection (b) may only be granted upon a formal motion of the Government at the time of sentencing.”). By empowering the Government, rather than the district court, to determine the extent to which the defendant has relieved it of that burden and to decide whether he is therefore entitled to the reduction, section 3E1.1(b) amplifies the pressure exerted on a defendant to plead guilty, rather than proceed to trial. In this way, section 3E1.1(b)’s requirement that the Government move for the one-level reduction further burdens the exercise of the Sixth Amendment right.
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Because of the odd way in which section 3E1.1 as a whole is phrased -- as a reduction in offense level for a defendant's not exercising his constitutional right to go to trial -- the remedy for the Court's conclusion that section 3E1.1(b) is unconstitutional is to reduce the penalty thereby effectively imposed on those who choose not to avail themselves of the “benefit” of section 3E1.1(b). The Court therefore concludes that in this, and indeed every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point, because the effect of not giving the one-point reduction to someone who chose to exercise, or considered exercising, his right to go to trial rather than save the Government some time and money is effectively an unconstitutional penalty on all who made that choice.

Whether the other, two-point reduction authorized by section 3E1.1(a) for those who plead guilty and thereby allegedly show their remorse is nonetheless itself an unconstitutional penalty imposed for their exercise of their constitutional right to trial is an issue the Court need not reach in this case, since the Court, for the discretionary and policy reasons stated at the outset of this Opinion, will in any case treat Mr. Tavberidze as having the equivalent of a Guidelines range three points less than what the formal Guidelines calculation would otherwise mandate.

For the whole opinion, see United States v. Tavberidze, 23-cr-585-03 (JSR) (S.D.N.Y. March 10, 2025).

Shortly after this ruling, a sentencing hearing was held during which the government argued against the court's decision. A short memorandum order was issued afterwards that addressed several of the government's arguments. Of particular note was the following discussion regarding whether the Guidelines created a benefit or a punishment.

Second, the Government argued that because section 3E1.1 is phrased as a benefit to a defendant who pleads guilty in a timely fashion, it should not be viewed as a penalty. But this argument ignores the fact that for several decades now, more than ninety-seven percent of federally-charged criminal defendants have pled guilty, and nearly all in sufficiently timely fashion to receive the full three-point reduction under sections 3E1.1(a) and (b). The reality, therefore, is that the three-point reduction is the overwhelming norm, and only those few defendants who dare to exercise their constitutional right to go to trial fail to receive it. Moreover, the chief beneficiary of the third point under section 3E1.1(b) is, as its language suggests, the Government. Thus, in reality, section 3E1.1(b) operates as a penalty that is imposed only on those few defendants who choose to go to trial and primarily for the benefit of the Government. Applying the one-point reduction thus ensures that all defendants are treated equally, regardless of whether or when they choose to exercise their Sixth Amendment right.

This memorandum order is available at United States v. Tavberidze, 23-cr-585-03 (JSR) (S.D.N.Y. March 14, 2025).

Growing Use of Sentencing Differentials in Resentencings

2025-02-21T13:44:00.002-05:00

Much attention has been focused in recent years on sentencing differentials in the plea bargaining context. The term sentencing differential captures the difference in sentence received by defendants who proceed to trial versus the sentence of codefendants or similarly situated defendants who plead guilty. For example, a Vera Institute Report from 2020 entitled In the Shadows noted that the odds of incarceration were 2.7 times greater for those who went to trial and the sentences in their review were 57 percent longer. See Ram Subramanain et al, Vera Inst. of Just., In the Shadows: A Review of the Research on Plea Bargaining (Sept. 2020). Many have argued that this represents a punishment for exercising one's Constitutional right to trial by jury, leading some to call this phenomenon the "Trial Penalty."

Academics have been focusing a light on this phenomenon for some time and there are now several cases indicating that the judiciary is listening.

First, as detailed in his recent book, A Second Chance (The New Press 2024), Judge Frederic Block resentenced a defendant named Sherwin Birkett in 2023 under the First Step Act. Among the reasons given by Judge Block for the resentencing was the fact that Birkett had received a significantly longer sentence because he chose to proceed to trial. See United States v. Sherwin Birkett, Memorandum, Case No. 90-CR-1063-24, p.16 (June 29, 2023). In fact, Sherwin and one other defendant were the only ones who proceeded to trial in a case involving forty-six individuals. By the time the matter came before Judge Block for potential resentencing, Birkett and the other defendant who proceeded to trial were the only ones left in prison. Everyone else, including the leader of the criminal organization, had received lighter sentences and been released. Judge Block noted in his order resentencing Sherwin, “[E]xtreme sentence disparity among co-defendants resulting from their choice to go to trial can be an extraordinary and compelling factor warranting a sentence reduction.”

Two other recent cases are also worthy of note with regard to the role of sentencing differentials in resentencings.

In January 2025, the State of New York Court of Appeals in People v. Brisman made clear that “a disparity between a plea offer and a trial sentence may be relevant to the Appellate Division’s determination of whether a sentence is unduly harsh or severe.” People v. Brisman, No. 108, State of New York Court of Appeals (Decided Jan. 9, 2025). In the same month, the U.S. District Court for the Middle District of Georgia in U.S. v. Cannon found that a sentencing disparity warranted a reduction in sentence and stated, “Here, Cannon suffered a substantial penalty by exercising his constitutional right to require the Government to prove his guilt beyond a reasonable doubt to the satisfaction of a unanimous jury.” United States v. Cannon, Case No. 4:95-cr-30 (M.D. Ga. Jan. 29, 2025). As described by the court, Cannon was a get-away driver who received 109 years and 5 months after being convicted at trial. His two co-defendants, by comparison, who engaged in more violent conduct, received 240 months and 300 months after pleading guilty.

Individuals should not be punished for exercising a right the Constitution guarantees. These cases are important examples of the courts' obligations and abilities where one is punished more harshly simply for proceeding to trial.

Supreme Court of Ohio Examines "Dark Pleas"

2024-11-11T10:51:00.127-05:00

The Ohio Supreme had an interesting case in August examining the troubling issue of "Dark Pleas." The case involved Lamont Clark, who was convicted of murder in 1993. In 2015, he filed a motion for a new trial after it was discovered that prosecutors had removed part of a medical record containing exculpatory evidence from the alleged victim in the homicide. Before the courts could hear the motion, however, Clark was offered a plea deal that would result in his immediate release. Clark accepted the deal, in part, because his mother was gravely ill at the time. Seven years later, Clark sought to withdraw his plea on the basis that it was coerced and, therefore, not voluntary as required by law. While the Ohio Supreme Court did not accept jurisdiction in the matter, Justice Donnelly wrote a powerful dissent describing what he called "Dark Pleas" and the manner in which they subvert due-process rights.

From Judge Donnelly's dissenting opinion.

This appeal presents an opportunity for this court to address a deeply troubling flaw that plagues our criminal-justice system: postconviction plea agreements, which I colloquially refer to as “dark pleas.” Dark pleas—pleas entered by convicted prisoners who do not have any charges pending against them—lack the procedural guardrails that protect a criminal defendant’s constitutional rights and are often entered into by prisoners only because of the unconscionable level of prosecutorial pressure on them to abandon colorable claims of innocence. I dissent from this court’s decision not to accept jurisdiction over this case to address this subversion of criminal defendants’ due-process rights.

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Clark’s case involved the insidious practice by prosecuting attorneys of pressuring a prisoner to plead guilty to nonexistent, nonpending charges in exchange for the State’s withdrawing its opposition to a motion for a new trial on the basis of newly discovered exculpatory evidence. Clark did not regain the Sixth Amendment rights that he enjoyed during the pendency of the underlying case. Nor was his presumption of innocence restored. The State circumvented its burden to proceed with the prosecution in light of what was then known to be true. It can be gleaned from the State’s willingness to withdraw its opposition to Clark’s motion for a new trial that it conceded that prosecutorial misconduct had occurred in the underlying case. In fact, the State implied this concession after the plea colloquy:

COURT: The basis for this motion was?

COUNSEL [for defendant]: Basis for the motion was it was learned last year in April, we obtained the full medical records for Ms. Banks from her brief hospitalization for this and we learned that the prosecutor in the case, Edward Walsh, had removed a number of pages from the medical records which the victim had stated that the gunshot was self-inflicted. I believe that this would undermine confidence in the verdict sufficient to warrant vacating and granting the petition for postconviction release.

COURT: Very good.

STATE: We agree with that, Your Honor. Although we don’t believe it absolved Mr. Clark of all responsibility, it undermined our confidence in the verdict, as well.

COURT: Well, lesson to be learned for your office.

STATE: Yes, Your Honor.

In light of the State’s willingness to withdraw its opposition to the motion for a new trial in the wake of strong evidence of prosecutorial misconduct, it can be concluded that the dark plea allowed the State to avoid (1) losing face through a likely defeat at a hearing on the new-trial motion, (2) regaining the burden to prove the charges against Clark beyond a reasonable doubt, and (3) engaging in plea negotiations with a defendant who is protected by a full panoply of constitutional rights instead of a prisoner who lacks such protections. The unsettling consequence is that in exchange for his freedom, the prisoner relinquishes the possibility of facing a new trial with all the protections of the Constitution. The cost of that freedom is a conviction on a charge that wasn’t even pending for a crime that the person maintains he did not commit.
The flaws in Clark’s postconviction plea proceedings were compounded by the fact that Clark’s actual reasons for entering the plea agreement were not stated on the record. The lack of a record later allowed the appellate court to decline to actively consider the validity of Clark’s guilty plea and instead simply note that the plea colloquy was recited on the record. The appellate court also refused to consider the egregiousness of the 1992 prosecutorial misconduct by noting that no record was made about the matter during the 2016 postconviction plea proceedings and concluding that res judicata applied.
Although the prosecutorial misconduct during Clark’s trial proceedings is an issue on its own, its place in this appeal should not be considered in a vacuum; its impact was pervasive. The prosecutor’s corrupt act of removing exculpatory evidence from the victim’s medical record potentially caused Clark’s wrongful conviction and his being falsely imprisoned for decades. Clark was then forced to navigate the defective postconviction-proceedings process, which culminated with the horrible choice of returning to prison indefinitely or being free to go after pleading guilty to an unsubstantiated crime (despite having otherwise asserted his innocence).

This appeal represents a chance for this court to address the breakdown of justice in the postconviction world. It is unsettling that dark pleas exist as a means of circumventing the revival of the State’s burden of proof and the defendant’s constitutional rights that would normally result from a meritorious motion for a new trial to withdraw a guilty plea. We should take this opportunity to address the deeply rooted flaws in postconviction plea bargaining. Because I would accept Clark’s jurisdictional appeal, I dissent.

(Internal citations omitted). You can read the full dissent here.

Justice Donnelly has written about the issue of "Dark Pleas" before. In fact, you can read an article he penned on the subject in the Cleveland State Law Review Et Cetera here. The piece is entitled, The Dark Plea: One of the Most Coercive Abuses of Power Permitted in the Criminal Justice System.

"Fair Enough?" - An Interesting Plea Bargaining Case and Discussion

2024-10-30T10:20:00.059-04:00

The Sentencing Matters Substack has an interesting piece by Jonathan Wroblewski discussing and examining a particular plea bargain. The piece, entitled Fair Enough? Truth, Justice, and the Case of Chrystul Kizer, can be found here.

The focus of the article, Chrystul Kizer, was alleged to have shot and killed Randall Volar when she was seventeen years old. According to the piece, Kizer told authorities that Volar had been "sexually abusing and otherwise mistreating her, including by marketing her as a prostitute. She said she shot him as he tried to touch her." After a 2022 Wisconsin Supreme Court decision decided that Kizer could raise an affirmative defense of abuse at trial, the case was resolved through a plea bargain. The bargain resulted in Kizer pleading guilty to one felony count of second-degree reckless homicide. The article explores whether this was a "fair" result, given that the eventual plea did not reflect the facts in the case.

From the author:

I don’t believe the way Kizer’s case played out was fair enough. First, law enforcement failed Kizer when Volar was first arrested and allowed to be released to further abuse Kizer and others. There should be some accountability for that decision. Second, Kizer had a more-than-plausible case that she was innocent of first-degree intentional homicide under Wisconsin law. The prosecution had a plausible case that she was guilty of intentional homicide, but with the clear evidence of abuse, it seems that second-degree intentional homicide (based on at least some mitigation for the abuse) was the more appropriate charge. The prosecution should have amended the charge to second-degree intentional homicide.
But rather than doing this and allowing a jury to resolve the conflict – which itself would have been imperfect – the parties chose to resolve it through a bargain that was fundamentally untruthful. Whether you believe in her innocence because of the affirmative defense or not, Kizer acted intentionally in killing Volar. This was not recklessness.
Plea bargaining takes place in the shadow of the sentence that will or might be ultimately imposed. Here, because of the mandatory life sentence for first-degree intentional homicide under Wisconsin law and because of the prosecutors’ insistence on following through to trial with that charge despite clear evidence of abuse by Volar, Kizer was left with choices that made pleading guilty despite her belief in her innocence a reasonable one. This is not fair enough. If the prosecutors had charged second-degree intentional homicide, carrying no mandatory life sentence, I think the choices that Kizer would have faced would have still been difficult, but it would have indeed been fair enough. And if she had been found guilty at trial and sentenced to 11 years imprisonment, I believe that result would have been fair enough.

The full piece and its discussion of the realities of plea bargaining is well worth a read.

Plea Bargaining Institute Posts Supreme Court Report with Case Summaries

2024-10-24T10:20:00.002-04:00

The Plea Bargaining Institute has posted a report regarding Supreme Court plea bargaining cases from 1970-2019. The report contains summaries of each case, which total 59. Before the summaries, the report contains a lengthy examination of the history of plea bargaining, the 1970 Brady decision, and the Supreme Court period following Brady. From the report's introduction:

This report from the Plea Bargaining Institute contains summaries of plea bargaining cases from the U.S. Supreme Court from 1970 until 2019. Each summary contains the case title, date of decision, the court from which review occurred, whether the decision was unanimous, the authoring Justice, the members of the majority, concurrence, and dissent, a brief overview of the case, a more detailed case summary, and a key quotation from the opinion. Before the individual summaries are listed below, the report begins with a brief examination of the historical rise of plea bargaining. This introduction also contains brief observations regarding the U.S. Supreme Court cases that follow in the summaries section. While the case summaries contained below are also available in the institute’s online searchable database (www.pleabargaininginstitute.com), this report offers readers a hard copy version for reference and retention.

As noted above, the case summaries contained in the report are also available in the Institute's searchable summaries database. Importantly, the website summaries of cases include information regarding sentencing differential sizes. Sentencing differentials can also be sorted on the website by size and whether the differential included the possibility of the death penalty.

Access the full report here.

New Article Explores the Psychology of False Pleas of Guilty

2024-01-11T16:45:00.002-05:00

In a new article authored by Prof. Lucian Dervan, Dr. Vanessa Edkins, and Prof. Thea Johnson, the authors explore the forces that lead to false pleas of guilty through examination of two cases of serial offenders who remained undetected for significant periods of time in part because others were initially coerced into false pleas of guilty in the cases.

Access a free copy of the article here.

From the introduction:

The last decade has seen significant growth in academic research and literature related to the plea bargaining system. In particular, much research has explored the impact of plea bargaining on the accused, including the phenomena of false guilty pleas by the innocent and false testimony in return for bargains. Both false guilty pleas and false testimony often result from the coercive bargaining practices regularly found in the criminal system. Plea bargaining is coercive when it overbears the will of the defendant, to borrow a phrase from the Supreme Court’s decision in Brady v. United States. Because of the state’s power over a criminal defendant, some argue that every interaction between the two contains some element of coercion. Regardless of where one draws the line of coercion, at a minimum, when an innocent person condemns them self or other innocent people through the plea process, their will has been overborne by the coercive power of the state. This Article focuses on the link between coercive plea bargaining and both false guilty pleas and false testimony against others.

Here, we seek to bring these harms and their attendant victims to light. We compile and synthesize the expanding body of research that demonstrates the clear connection between coercive plea practices and false guilty pleas and false testimony. This descriptive Part of the Article identifies the types of practices that put defendants most at risk of falsely condemning themselves or others. As the title of this Article suggests, we also identify the defendants who falsely plead guilty or who are compelled to offer false testimony as part of bargains and those against whom such false testimony is elicited as victims of plea bargaining, although they are often not attended to in this way. Understanding this category of defendants as victims expands our conception of the harm of certain regular features of the plea system.

The use of coercive incentives to induce false pleas and false testimony prompts us to recognize the pressing need for reform in the bargained justice space. In particular, the plea bargaining system should be reformed, both to reduce the coercive incentives that lead to false guilty pleas and false testimony and to create more oversight to ensure that the system’s inherent discretion is not used improperly. To this end, the authors—all members of the American Bar Association Criminal Justice Section’s Task Force on Plea Bargaining—highlight the sections of the 2023 Task Force Report that most directly speak to the problem of coercive plea bargaining. We hope this Part of the Article will encourage legal stakeholders to prioritize reforming coercive plea bargaining and give them ideas for how to do it.

This Article is the first part of a broader project that intends to shed light on the many, sometimes hidden or ignored, victims of coercive plea bargaining. These victims have received less attention than the practice itself. While this Article focuses on the first layer of victims of coercive plea bargaining, namely defendants who falsely condemn themselves or other innocents, a later article will focus on a second layer of victims, including the original victim, whose rights remain unvindicated when a false guilty plea allows the true perpetrator to escape justice, and also any victims who later fall prey to the actual guilty party. This broader two-part project intends to expand our understanding of who counts as a victim in the criminal justice system and the role of coercive bargaining in perpetrating these wrongs.

In Part I, this Article explores the reasons that defendants falsely plead guilty. It provides an overview of the emerging body of literature on false guilty pleas, focusing on the factors that increase the risk of false guilty pleas. In Part II, this Article demonstrates how coercive plea bargaining encourages defendants to give false testimony against others. We also explore how these twin harms—false pleas and false testimony—should be seen as creating a category of victims of plea bargaining, namely defendants who are compelled to falsely condemn themselves and others. Finally, in Part III, this Article turns to a set of on-the-ground reforms that can reduce coercive bargains and their many victims.

Plea Bargaining Institute Launches New Website

2023-12-11T12:56:00.003-05:00

The recently created Plea Bargaining Institute announced the launching of its new website today. The news release from the institute is found below and you can access the new website here - www.pleabargaininginstitute.com.

The Plea Bargaining Institute is pleased to announce the launching of the institute's new website - www.pleabargaininginstitute.com. The website contains valuable information that will assist the institute in its mission to create a global intellectual home for academics, policymakers, advocacy organizations, and practitioners working in the plea bargaining space to share knowledge and collaborate.
Lucian Dervan, Founding Director of the PBI said, "We are incredibly excited to launch the website today and begin the process of making research and caselaw regarding plea bargaining more accessible to those working in the field and to the public generally. One of the main missions of the PBI is to advance plea bargaining research and reform through the dissemination of knowledge. The website is one of the centerpieces of that work and will grow over time as more materials are added."
The new website includes pages dedicated to plea bargaining reports, plea bargaining summaries, and institute events and news.
Of the website launch, Rebecca Shaeffer of the National Disability Rights Network and a member of the PBI Board of Advisors said, "The Plea Bargaining Institute has launched an incredible resource that captures for the first time the "hidden law" of plea bargaining that forms the daily operation of criminal adjudication in this country. It's a groundbreaking effort that will be of immediate usefulness to criminal practitioners, researchers and advocates alike."
The reports page creates a space where visitors can review materials both from the PBI and from other organizations. The page will contain reports from the PBI that capture research, analysis, and developments in the plea bargaining field. Currently, the page holds our report from the inaugural symposium.
The summaries page provides visitors with a searchable database of important case law and research summaries. Currently, the summaries database contains a curated collection of significant U.S. Supreme Court cases involving plea bargaining since 1970. A unique feature of the website database is the caselaw feature that tracks sentencing differentials - the difference between the sentence offered as part of a plea of guilty and the sentence faced or received after trial. Along with including information about particular sentencing differentials in case summaries where that information is available, the database also allows visitors to search the entire database of cases by differential size. The current database also includes a handful of academic articles regarding plea bargaining. A large curated collection of significant plea bargaining academic research covering several decades will be added shortly, and further summaries of research and caselaw will be added on a rolling bases.
Michael Heiskell, President of the National Association of Criminal Defense Lawyers, said of the website launch and the summaries page, "NACDL applauds the launch of the Plea Bargaining Institute’s website, which will provide the defense community with curated research and caselaw on plea bargaining. Access to these critical resources will support defense attorneys around the country who fight to end the coercive effects of plea bargaining every day. NACDL looks forward to continuing its work with the Plea Bargaining Institute to turn this goal into reality."
Pursuant to the PBI mission to create opportunities for dialogue and collaboration, the institute convenes and participates in various events throughout the year which can be found on the events page of the website. The focus of these events and the target audiences for these offerings vary, but each is designed to further the institute’s mission of sharing knowledge and creating opportunities for collaboration. The flagship event each year is the PBI Symposium.
The website's news page is a place where you can catch up on the latest news regarding the PBI and regarding research and developments in the plea bargaining field.
Finally, in the contact us section of the website, visitors can sign up to receive email updates regarding the institute and its work.

ABA Adopts the 14 Principles on Plea Bargaining

2023-08-17T12:05:00.000-04:00

As Chair of the American Bar Association Criminal Justice Section from 2018-2019, I had the pleasure of creating three task forces. One of those task forces, which I went on to co-chair, was the Task Force on Plea Bargaining. The Task Force was comprised of representatives from the prosecution, defense, academy, advocacy organizations, and the state and federal systems. After over three years of work, we released our report and recommendations earlier this year (a blog post about the report is available here). Included in our report were 14 Principles that we developed to create a fairer, more transparent, and more just criminal system.

Last week in Denver, Colorado at the ABA Annual Meeting, I moved adoption of those 14 Principles in ABA Resolution 502. The Resolution received no opposition and was overwhelmingly adopted by the ABA House of Delegates. With the passage of Resolution 502, the 14 Principles now become the official policy of the ABA. It has been a long road and there is much left to do, but this is an important step forward.

Video of the Resolution discussion is below, along with coverage of the adoption of the 14 Principles and the 14 Principles themselves.

ABA Journal Article about Resolution 502 (here)

The 14 Principles from the Report:

Principle 1: A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice and legitimacy in the criminal justice system.

Principle 2: Guilty pleas should not result from the use of impermissibly coercive incentives that force a defendant to plead guilty rather than pursue their right to a trial.

Principle 3: A substantial difference between the sentence offered prior to trial and the sentence received after trial undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.

Principle 4: Charges should not be selected or amended to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.

Principle 5: The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.

Principle 6: A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.

Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.

Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.

Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.

Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights, defendants should never be required to waive certain rights. Among them: the right to effective counsel, the right to challenge sentencing errors, the right to challenge the constitutionality of the statute of conviction and the right to appeal.

Principle 11: An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.

Principle 12: Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.

Principles 13: Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.

Principle 14: At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.

ABA CJS Plea Bargaining Task Force Releases Report

2023-02-22T16:28:00.000-05:00

Earlier today, the American Bar Association Criminal Justice Section Plea Bargaining Task Force released its final report, which includes 14 recommendations for creating a more transparent, fairer and more just system. Formed in 2019 when I served as Chair of the Criminal Justice Section, the task force was created to assess the state of plea bargaining in America and was made up of prosecutors, defense attorneys, judges, academics and members of various think tanks and advocacy organizations - including task force members affiliated with The Innocence Project, Southern Poverty Law Center, Council on Criminal Justice, Fair Trials, NACDL, and the Cato Institute.

More information about the task force and a copy of the report are available on the task force website.

The 14 Principles from the Report:

Principle 1: A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice and legitimacy in the criminal justice system.
Principle 2: Guilty pleas should not result from the use of impermissibly coercive incentives that force a defendant to plead guilty rather than pursue their right to a trial.
Principle 3: A substantial difference between the sentence offered prior to trial and the sentence received after trial undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4: Charges should not be selected or amended to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5: The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
Principle 6: A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights, defendants should never be required to waive certain rights. Among them: the right to effective counsel, the right to challenge sentencing errors, the right to challenge the constitutionality of the statute of conviction and the right to appeal.
Principle 11: An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Principle 12: Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.
Principles 13: Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
Principle 14: At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.

The report, which contains a detailed discussion of each of the above principles, notes that the current plea-bargaining system offers many benefits, including efficiency, cost savings, certainty and a mechanism to incentivize defendants to cooperate or accept responsibility. However, the report found those benefits come at a high cost in our current system. For example, coercive plea bargaining that values efficiency over accuracy leads the innocent to falsely plead guilty and victims' interests to go unvindicated. Plea bargaining can also allow police and government misconduct to go undetected. The report also found that plea bargaining can exacerbate existing racial inequality in the criminal system. Finally, it is important to note that each of us has the constitutional right to trial, and we found that defendants who exercise that right are often punished simply for doing so.

This is why this diverse group representing various sides of the criminal system came together to recommend 14 principles to create a fairer, more just and more transparent system. I am very grateful to the ABA Criminal Justice Section for supporting this work. My deepest thanks also to the task force members, my Co-Chair, Professor Russ Covey of Georgia State University College of Law, and the Task Force Reporter, Professor Thea Johnson of Rutgers Law School.

Media Related to the Task Force Report:

Opinion piece written by Lucian Dervan, Thea Johnson, and Russ Covey - available here.

NPR News Story - available here.

Law360 News Story - available here.

ABA Journal Story - available here.

Article Regarding Jails and False Pleas of Guilty

2022-12-15T11:00:00.022-05:00

Earlier this week, we announced the creation of the Plea Bargaining Institute. Today, we share a recent article from one of the members of the Plea Bargaining Institute's Advisory Board - Rodney Roberts. Mr. Roberts is an exoneree and re-entry coach with the Innocence Project.

The article discusses Mr. Roberts' decision to falsely plead guilty to an offense he had not committed after being given only 25 minutes to make the life altering decision.

From the piece:

When I was 24 years old, I was incarcerated in New Jersey’s Essex County jail for a crime I did not commit. For almost a year I was behind bars — charged but not convicted.
With no money to afford a private attorney, I relied on the counsel of public defenders. Then I was faced with a decision — the most consequential decision of my life — and one that I should never have had to make.
My attorney told me I could plead guilty to the crime I had been falsely accused of, kidnapping and sexual assault, in exchange for a seven-year prison sentence of which I would possibly end up serving just two years. Or I could fight to prove my innocence at trial and face the prospect of life in prison if I lost. . . .
I made my decision without being able to consult my family and in the time allotment my public defender gave me: 25 minutes. Because public defenders often have an overflowing docket of clients to see — at the time mine had maybe 70 to 80 cases — he had to move on to the dozens of other incarcerated people he was defending while I made this choice. It was like an assembly line. . . .
I sat there with tears in my eyes trying to use my best judgment. I accepted the plea agreement. Many people claim they would never, ever plead guilty to a crime they didn’t commit. I thought the same thing until my life was hanging in the balance.
For my guilty plea, I wound up spending 18 years in custody (including years after prison confined civilly by the state) before DNA evidence excluded me as a perpetrator and I was exonerated and released in 2014.

You can read the entire article here.

Prof. Dervan and Fair Trials Launch Plea Bargaining Institute

2022-12-13T10:06:00.000-05:00

Criminal justice watchdog Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (PBI). Launched today, PBI is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices.

In the US, 95% or more of criminal cases are resolved through a plea of guilty. When someone pleads guilty they waive their right to a trial, something guaranteed by the U.S. Constitution. While a plea bargain may offer advantages, such as a more lenient sentence, plea bargaining often involves coercive incentives that negatively impacts all defendants’ right to trial. Research indicates that these incentives can be so coercive that even innocent defendants plead guilty. For example, 21% of the cases entered into the National Registry of Exonerations in 2021 involved false pleas of guilty. These pressures to plead guilty may include pressure from police and prosecutors, the imposition of much higher sentences for those who exercise their right to proceed to trial, and other systemic problems including lack of access to a lawyer, long pre-trial detention periods and high court costs. Today, coercive plea bargaining is not limited to the United States as countries around the world adopt this system of adjudication.

PBI will create opportunities for dialogue that will inspire new and innovative research and analysis, empowering those working to reform plea bargaining to more effectively shape laws, change policy, and transform practice in the United States and internationally. PBI will also work to limit the use of coercive plea bargaining and reform the practice as a whole by engaging in training to instigate sustained alternatives.

“I am honored to be partnering with Fair Trials and excited for the launch of the Plea Bargaining Institute,” said Professor Dervan. “There is a vital need for an institute that makes important research findings and case developments widely available to those working to reform plea bargaining practices. Simultaneously, there needs to be an organization that creates opportunities for dialogue and collaboration between academics, practitioners and advocacy organizations to assist in identifying new areas for research and inquiry in this field. Today, we launch an institute that will meet these needs and help propel current and future plea bargaining reform efforts.”

Professor Dervan continued, “For decades, the plea bargaining system operated in the shadows – not well understood, not well regulated and not regularly subjected to robust challenge through litigation. Fortunately, that has begun to change over the last decade with growing research and advocacy. As research endeavors and reform efforts grow there is a vital need for an entity that can create cohesion and communication between the various groups. PBI will provide a global intellectual home for researchers, practitioners, and policy advocates to share knowledge and promote collaboration.”

Rebecca Shaeffer, Legal Director for Fair Trials Americas, said: “Plea Bargaining has come to all but replace criminal trials in the USA, but there is still insufficient knowledge about its impacts on the justice system and the people subject to it. The Plea Bargaining Institute will advance research in this field and provide an empirical and legal basis for the reforms we know the system needs.”

PBI will focus on the following initiatives as it begins to create a global intellectual home for plea bargaining research:

Summaries of research and case law developments provided in a searchable online format and in annual reports to make these materials more accessible for use by academics across various fields, policymakers, advocacy organizations and practitioners.
Working groups for academics, policymakers, advocacy organizations and practitioners to share knowledge and create opportunities for dialogue and collaboration.
An annual symposium at Belmont University College of Law in Nashville, Tennessee to establish which new areas of research are necessary to bring attention to and reform the plea bargaining system both in the US and around the world.

As PBI grows, the project will expand its reach, including providing education and outreach.

To find out more about the PBI and sign up for updates visit:

https://pleabargaininginstitute.fairtrials.org/

Please be aware that this website is under development, the full site will launch in early 2023.

The PBI Board of Advisors includes:

Rebecca Brown, Director of Policy, Innocence Project

Cynthia Jones, Professor of Law, Washington College of Law, American University

Abbe David Lowell, Defense Lawyer, Winston & Strawn

Allison Redlich, University Professor, Department of Criminology, Law and Society, George Mason University

Jenny Roberts, Professor of Law, Washington College of Law, American University

Rodney Roberts, Activist and Exoneree

Cynthia Roseberry, Acting Director, ACLU Justice Division, ACLU

Martin Sabelli, Defense Lawyer and Immediate Past President of the National Association of Criminal Defense Lawyers, Law Offices of Martin A. Sabelli

Abbe Smith, Director, Criminal Defense and Prisoner Advocacy Clinic, Georgetown University Law Center

You can find the entire press release on the Fair Trials website here.

Eastern District of New York Recognizes Impact of Sentencing Differentials

2022-12-12T16:01:00.000-05:00

In an opinion issued in late November 2022, Senior Judge Frederic Block of the U.S. District Court for the Eastern District of New York discussed the impact of disparities between sentences of co-defendants based on their decisions to exercise their constitutional right to trial when finding extraordinary and compelling grounds for a sentence reduction. The case involved two defendants seeking reduced sentences on compassionate grounds under the First Step Act. In granting the first defendant's motion, the court wrote:

Courts have found that a gross disparity between sentences of co-defendants stemming from their choice to exercise or forgo their constitutional right to a trial is an extraordinary and compelling factor. See United States v. Ballard, 552 F. Supp. 3d 461, 468 (S.D.N.Y. 2021) (finding that a drastic sentencing disparity between co-defendants, which resulted in part from the fact that Ballard opted to exercise his right to trial when his co-defendant accepted a plea deal, supported a determination that extraordinary and compelling circumstances warranted a reduction of the defendant's sentence); see also United States v. Haynes, 456 F. Supp. 3d 496, 514 (E.D.N.Y. 2020) (“The Court readily concludes, on the facts as detailed above—including the brutal impact of Haynes's original sentence, its drastic severity as compared to codefendant Rivers's ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes's exercise of his constitutional right to trial—... [constitute] an extraordinary and compelling circumstance warranting relief under § 3582(c).”).
Russo exercised his constitutional right to trial. Of Russo's fourteen co-defendants, seven went to trial. Six received mandatory life sentences under the then-mandatory sentencing guidelines. The seventh was acquitted.
In contrast, the remaining co-defendants received sentences ranging from time-served, equating to approximately four years, to 270 months. The offense conduct of these defendants, although ultimately charged differently by the government than those defendants who proceeded to trial, was no less violent or destructive than those who received life sentences. For example, co-defendant Theodore Persico pleaded guilty for charges including conspiracy to commit murder and received a sentence of 270 months. Co-defendant Richard Fusco received a sentence of 168 months after pleading guilty. He was originally charged with conspiracy to commit murder.
This disparity does not reflect the goals of sentencing. And, while the government's argument that accepting responsibility for one's crimes should result in a lower sentence is well taken, it is often disproportionately reflected in how co-defendants are charged and sentenced. Thus, this disparity in sentencing also weighs toward a finding of extraordinary and compelling circumstances.

For the complete opinion, see United States v. Russo et al., Case No. 92-CR-351, Case No. 90-CR-1063, E.D.N.Y. (November 28, 2022).

Federal Legislation Regarding the Trial Penalty and Mandatory Minimums

2022-09-23T15:00:00.011-04:00

Earlier this year, several members of Congress introduced a bill aimed at adding additional statutory protections for the Constitutional Right to Trial. Entitled the "Right to Trial Act," the legislation would require Judges during sentencing to consider whether an increased sentence was threatened or imposed based on a decision by the defendant to proceed to trial. The legislation would also require judges during sentencing to consider the plea offers and sentences received by co-defendants or similarly situated defendants who plead guilty instead of preceding to trial. Finally, the bill proposes that judges have the discretion to impose a sentence below an established statutory minimum if necessary to protect the constitutional right to trial.

Requiring judges to consider the impact of sentencing differentials when arriving at an appropriate sentence after conviction at trial and creating a safety-valve to help protect against the use of mandatory minimum statutes to coerce pleas of guilty are much needed steps forward in creating a more transparent criminal justice system and helping ensure that defendants are not being punished more harshly simply because they have chosen to exercise one of our most fundamental constitutional rights - the right to trial. This will be an important bill to monitor as it makes its way through Congress.

Excerpts from the bill are below:

“(8) the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer;

“(9) in the case of—

“(A) crimes involving similarly situated codefendants or group conduct, the plea offer, if applicable, and each sentence (and anticipated sentence) of any similarly situated codefendant or similarly situated other person charged in the same or related offense who pled guilty; and

“(B) crimes not involving codefendants or group conduct, the plea agreements and the sentences for similarly situated defendants who pled guilty to similar offenses; and

“(10) whether imposition of a statutory minimum sentence would constitute a penalty for asserting the constitutional right to a trial, thereby warranting imposition of a sentence below the statutory minimum.”.

(b) Authority.—Section 3553(e) of title 18, United States Code, is amended by inserting after “committed an offense.” the following: “The court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial.”.

New Reports on Global Plea Bargaining from Fair Trials

2022-02-03T12:13:00.004-05:00

Fair Trials, an organization that campaigns "on issues that threaten the right to a fair trial or reinforce discrimination and inequality in criminal justice," has released two new reports regarding plea bargaining around the world.

The first report, "Efficiency over justice: Insights into trial waiver systems in Europe," was released in December 2021. From the executive summary:

Criminal punishment is increasingly imposed without a trial but instead through a trial waiver system or other alternative disposition systems that fall short of a trial (including penal orders and fast track proceedings). A recent report by the European Commission for the Efficiency of Justice, noted that in 2016, in the majority of Council of Europe member states, about 50% of criminal cases were processed before courts; the rest resulted in a sanction or measure imposed or negotiated by prosecutors. It is likely that the share of criminal cases processed out of courts will increase in the future. This shift in how criminal cases are processed requires research to understand the implications that such case resolution mechanisms have on the rights of the accused, but also on the integrity of the criminal justice system as a whole.
. . .
The report highlights four trends that are generally common to criminal justice systems across Europe. These trends are key to understanding the rise of trial waiver systems and the reasons for their shortcomings. First, criminal justice systems are overburdened and suffering from court delays and backlogs. This saturation is not only due to a lack of resources, but also caused by the constant and increasing recourse to criminal law and punishment to address social harm. This contributes to the second trend of overcriminalisation and overpunishment. Third, states continue to have excessive recourse to pre-trial detention leading to prison overpopulation and inhumane detention conditions. The fourth trend is symptomatic of all the others. States are looking at cost-efficient policies to deal with overburdened systems. This explains the rise of trial waiver systems as a star tool available to prosecutors throughout Europe to resolve criminal cases quickly and cheaply.

The report examines these issues and makes several recommendations related to structural reforms, data collection and research, enhanced procedural rights, effective judicial oversight, and increased accountability. The report is available here. An opinion piece regarding the report also appeared in the EU Observer.

The second report, "Trial waiver systems: A guide for policy makers," was released in January 2022. From the introduction.

A recent report by the European Commission for the Efficiency of Justice (CEPEJ), details that in 2016, approximately 42% of the total number of criminal cases4 were discontinued by prosecutors, 28% were processed before courts and “27% resulted in a penalty or measure imposed or negotiated by the prosecutor”.5 In other words, about 50% of all criminal cases that proceed are processed outside the framework of a trial. This strive for efficiency has become the main driver of change for modern criminal justice systems.6 A well-functioning criminal justice system is in the interest of all actors, including suspected and accused persons. However, the pursuit of efficiency cannot be limited to considerations of cost and fast resolutions. There is concern that efficiency is achieved by bypassing the fundamental rights of suspected and accused people.7 While it is the duty of states to improve the situation of the judiciary or adjust it accordingly in order to cope with backlogs, cost-efficiency driven reforms should not place a disproportionate burden on suspected and accused persons, and the priority should always be given to protecting rights and respecting the rule of law.
. . .
This guide provides an overview of the risks associated with trial waiver systems identified in our research (I) and guidance on how to mitigate these risks, including through research and impact assessment (II); structural reform limiting the incentives to waiver the right to a trial (III); the implementation and adaptation of procedural safeguards to the trial waiver context (IV); effective judicial oversight over trial waiver systems (V) and increase oversight over prosecutorial powers through the development of public prosecutorial guidelines (VI).

The report is available here.

The issue of efficiency and the manner in which plea bargaining sacrifices accuracy in favor of efficiency is vitally important to our discussions around plea bargaining reform. In my 2018 article "Class v. United States: Bargained Justice and a System of Efficiencies," I ended with the following.

If, even knowing the alarming power of plea bargaining to ensnare the innocent, we continue forward, are we not conceding that beyond being merely a system of pleas, today’s criminal justice system is, for the most part, actually a system of efficiencies? As a recent article regarding plea bargaining observed, “Though there are several reasons underlying the rise in plea bargains, the primary reason—efficiency—remains true today and is the most-often-cited reason for maintaining the practice.” What does it means to concede that the criminal justice system today is more about efficiency and less about justice than our Founders might ever have envisioned? What does it mean that in a system that values individual liberty, we have marginalized the right to a jury trial because of our inability to operate an overcriminalized system without bargained justice? While I do not know how those questions will be answered [by the Supreme Court in future decisions], I do think they are the concerns to which a deep examination of plea bargaining must eventually lead us—and the Court.

The Class v. United States article is available for free download here.

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

2021-08-19T13:04:00.002-04:00

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 dominated by pleas. In particular, the entry discusses the risk of false confessions and the use of the trial penalty to increase the sentence of those who refuse to bargain. From the blog:

Even defendants who refuse to plead guilty are still affected by the plea system. To incentivize pleading guilty, the cost of going to trial has increased dramatically. It now seems clear that criminal defendants are being punished for exercising their constitutional right to a jury trial.

Congratulations to Dr. Wilford on the new blog. The (In)Justice System blog will be a great resource for empirical data and information on the criminal system.

New Plea Bargaining Articles re the Impact of COVID-19

2021-07-19T12:14:00.000-04:00

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.

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

2021-07-16T16:14:00.000-04:00

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 program for incarcerated people, got in touch with Bazelon, saying, Briley was trying to contact her. Bazelon found Briley's letter, began corresponding with him and became convinced his case was worth looking into.

She contacted several lawyers, who declined to represent him, so she tried her sister Lara Bazelon, a professor of law at the University of San Francisco, where she runs a criminal justice clinic. Lara took on the case, and with the help of her students, a private detective and Emily, she was able to appeal Briley's case. He was exonerated in March.

The article in the NYT Magazine details the case and reflects on the criminal justice system and the many ways that it failed in this case. In particular, the piece contains a detailed discussion of the unreliability of eyewitness identifications.

Though Briley was convicted at trial, there is also an interesting discussion of plea bargaining in the piece. Shortly before trial, Briley was offered 12 years in prison in return for pleading guilty. Of the deal, Briley's father said, "Even though Yutico was adamant that he didn't do it, going to trial was too risky to risk your life on." Briley did go to trial, and received a trial penalty of an additional 48 years in prison for exercising his constitutional right to trial.

The article is available here, and the FRESH AIR interview with Emily Bazelon and Yutico Briley is available here.

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

2021-06-17T15:31:00.000-04:00

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 testify against a co-defendant in return for the benefits of the deal. This piece examines each of these findings and considers what this research means for the future of bargained justice.

The article was published in the For the Defense magazine. A free copy of the article is available for download here.

The History and Psychology of Plea Bargaining and the Trial Penalty

2021-03-31T15:58:00.004-04:00

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 these past precedents and approve of bargains, including a Justice’s words of caution regarding innocence. The article then delves into plea bargaining’s innocence issue more squarely and considers how the incentives offered to defendants impact the accuracy and reliability of guilty pleas. This discussion includes examination of the complex psychological forces at play within defendant decision-making, the significant advances that have been achieved in the law and psychology discipline during recent years, and what this means about the Supreme Court’s words regarding innocence in 1970. Finally, the article concludes by considering the Supreme Court’s recent plea bargaining jurisprudence and contemplates where our system of justice might be heading next.

Download the entire article here.

Report Regarding Guilty Pleas in England and Wales

2021-03-29T18:13:00.001-04:00

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 secure 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 are high numbers for a country where the court once wrote, “[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.” See Rex v. Warickshall, 1783. The executive summary offers some perspectives of why pleas of guilty are now encouraged under the laws of England and Wales.

Two principal justifications currently exist for offering sentence reductions to defendants who plead guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may require multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered early in the criminal process, conserves criminal justice system resources. The police, the Crown Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea may be considered evidence of remorse on the part of defendants, but this factor is considered elsewhere in the sentencing methodology.

The executive summary also describes the manner in which England and Wales have created a structured sliding scale of reductions based on the efficiency considerations described above.

The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded. The guideline also specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the recommended reductions. These allow a departure from the recommended maximum reductions. For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner. In addition, there is a separate regime for young defendants.

Finally, the report also briefly explores the issue of innocence and argues that the risks are low because the sentencing differentials in England and Wales are "modest."

As long as it is possible to plead guilty, there is a risk that any defendant (even if innocent) may do so, and this risk is much discussed in the academic literature (e.g. Ashworth 2015, p. 182).33 This risk increases if sentence reductions are significant. This underscores the need to ensure that defendants have access to legal representation which should serve as a safeguard – although it is not necessarily always guaranteed (McConville et al. 1994).
It is unclear what form of evidence would resolve the question of whether current levels of reduction are excessive. In many cases, the impact of the sentence reduction on time served in prison will be modest, thereby reducing the risks of innocent defendants pleading guilty simply to obtain the sentence reduction. A concrete example illustrates the point. A defendant who pleads after the first opportunity but before the day of trial is entitled to a maximum reduction of one quarter of the custodial sentence. Assuming an eight-month sentence without a plea, the sentence after a plea will be six months, half of which will be served in prison. The guilty plea reduces the offender’s time in prison by one month: they will serve three months instead of four. The question then is whether these levels of reduction create sufficient pressure on the defendant to plead guilty if he or she has a defence to the charge. Of course, the attraction of a reduction in time served does not speak to the possibility that defendants who perceive a guilty plea may result in their avoiding a prison sentence altogether (discussed later in this paper).
Research involving offenders reported by the Sentencing Council suggests that the magnitude of the reductions offered were not a significant factor affecting their decision to plead. The report notes that: ‘The main factor determining whether or not offenders plead guilty was the likelihood of being found guilty at trial’ (Dawes et al., 2011 p. 32). Although the research involved only a small number of defendants, this suggests that it is the likelihood of conviction rather than the magnitude of reduction following a guilty plea that was the primary determinant in the decision to plead guilty. However, the data are far from robust on this question and more (and more up to date) research is needed.

While the above described sentencing differential is certainly smaller than many of the incentives present in the U.S. system, I wonder whether this captures all of the incentives that are actually available and being offered in England and Wales. My recent piece examining plea bargaining systems in several countries noted that many countries have extensive shadow bargaining systems with little or no transparency. One must wonder what other incentives may be operating outside of the above described regulated system that might be further increasing the size of the actual sentencing differentials. As the authors note, there is a need for more research to see how the systems in England and Wales are operating, and I hope that any such research would include updated examination of this issue.

The full report is available for review here.

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

2021-03-17T13:36:00.001-04:00

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 potential reforms and paths forward. To ensure that as wide a possible audience is able to voice concerns, perspectives, and ideas about the plea bargaining system as the task force begins drafting its report and recommendations, we encourage those interested to provide written comments to us.

Comments should be in written form and should be submitted to the Task Force’s Reporter, Professor Thea Johnson (thea.johnson@rutgers.edu) by April 15, 2021. Written comments may address any aspect of the plea bargaining system that the drafter believes will assist the committee in its work. Please note that the task force intends to create a publicly accessible website with information about the work of the task force, the task force’s report, materials from the presentations that were made before the task force, and materials submitted for the task force’s consideration. We hope that this repository will be a valuable tool for those interested in plea bargaining. As a result, please note that your submitted comments, including the identity of the submitting individual(s) or organization(s), are not confidential and may (at our sole discretion and without further permission) appear in this public forum. Reference to and quotations from comments received, including the identity of the author(s), may also (at our sole discretion and without further permission) appear in the official report of the committee.

We hope those interested in these topics will consider participating in this opportunity for comment.

Sincerely,

The ABA Criminal Justice Section Plea Bargaining Task Force

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

2021-02-13T13:11:00.000-05:00

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 effective.

We have now published our first paper related to this study, which is available for free download here.

Bargained Justice: The Rise of False Testimony for False Pleas

Andrew M. Pardieck, Vanessa A. Edkins, and Lucian E. Dervan

44 Fordham International Law Journal 469 (2020)

Our findings reveal that false pleas of guilty and the innocent defendant’s dilemma are global phenomena. Further, as mentioned above, we also collected new data regarding the accuracy of testimony offered against third parties in the plea bargaining context. The results of this research may surprise some in the legal community and calls into question the validity and the accuracy of the testimony by those accepting bargains. Our data indicates that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves. This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems, and the first time laboratory research has established the presence of the phenomenon of false testimony in return for the benefits of a plea bargain.

Below is the full abstract for the piece. I hope you will take a moment to download the full article and read about our statistical findings of false pleas by the innocent and the willingness of participants to falsely testify against others in return for these bargains.

Abstract

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent. The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain. Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves. This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems. It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain. The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.

New Article re Carlos Ghosn Case Includes Discussion of Plea Bargaining

2020-12-29T13:57:00.001-05:00

The Asia-Pacific Journal has published a piece discussing the Carlos Ghosn case. While the entire investigation, prosecution, and flight from Japanese authorities is interesting, this particular piece also contains discussion of plea bargaining. As noted in the article, the prosecution of Ghosn stems, at least in part, from two Nissan employees reporting his alleged misconduct in hopes of receiving leniency under Japan's relatively new plea bargaining law. The piece goes on to compare criminal laws and procedures in Japan and the United States, including the use of pressure to induce admissions. From the article:

Another striking similarity between Japan and the U.S. concerns the use of pressure to produce admissions of guilt. In both countries, protections for defendants on trial are relatively robust, but in the pretrial process much pressure is brought to bear on suspects to help the state obtain convictions...

Interrogation in Japan has been the subject of much good research in English (Foote, 1991; Miyazawa, 1992; Foote, 1993; Takano, 2019). Recent reforms require the electronic recording of interrogations in a limited range of cases, but even in those cases “the problem of the overborne will” that has long plagued criminal justice in Japan has not been eliminated (Johnson, 2002, ch.8). In the U.S., pressure is routinely employed in plea bargaining, by threatening to impose a large “trial tax” on defendants who have the temerity to exercise their right to trial – and who then get convicted (Langbein, 1978; Fisher, 2003; Burns, 2009; Lynch, 2016). Many commentators either do not know about the size of trial penalties or deny their coercive effects, but some observers are clear about this American problem (Rakoff, 2014). As former Chief Judge William G. Young of the Federal District Court of Massachusetts put it in U.S. v Richard Green et al (2004):

“Evidence of sentencing disparity [trial penalty] visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that disparity has widened to an incredible 500 percent [this means the punishment after conviction at trial is five times the punishment prosecutors offered in plea bargaining]…Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people—punish them severely—simply for going to trial. It is the sheerest sophistry to pretend otherwise.”

In sum, both Japan and the U.S. rely heavily on admissions of guilt, and the criminal justice systems in both countries often use high-pressure tactics to achieve that end. Both systems also fail to provide adequate judicial oversight of the processes that are used to pressure defendants into helping the state convict (Foote, 2010; Lynch, 2016). But there is an interesting difference too. While many international legal norms have been instituted to govern the process of criminal interrogation, human rights instruments have little to say about the high-pressure practices that make plea bargaining problematic in the U.S. and in other countries where “trial waiver systems” are expanding (Fair Trials, 2016, pp. 60-69). This gap in international norms may help explain why so much criticism was directed at Ghosn’s interrogations while the routine American practice of imposing pressure through plea bargaining seldom gets recognized.

You can read the entire article here.

Federal Appeals Court Opinion Discusses Wired Pleas and Ineffective Assistance of Counsel

2020-12-18T16:32:00.000-05:00

Those interested in case law regarding plea bargaining will want to take a look at the recent case of United States v. Melvin Knight (United States Court of Appeals for the District of Columbia Circuit, Decided December 8, 2020). The entire opinion is available here.

The case involves interesting issues surrounding "wired pleas," the trial penalty, ineffective assistance of counsel, and the remedies available to co-defendants when the 6th Amendment is violated. From the case:

In 2013, Melvin Knight and Aaron Thorpe were arrested for armed robbery and kidnapping. They were charged by the U.S. Attorney’s Office in the D.C. Superior Court and offered a generous plea deal by the Assistant U.S. Attorney: plead guilty to a single count of assault with a dangerous weapon and no further charges stemming from these crimes would be filed. Under the D.C. Superior Court Sentencing Guidelines, the likely sentences would be between two and six years for each defendant. The plea offer was wired, however, so both Knight and Thorpe had to accept it or it would be withdrawn. Thorpe wanted to accept the plea offer, but Knight, who was erroneously advised by his counsel that the offer came with ten years in prison and never advised by his counsel of the sentencing consequences of rejecting plea the offer, did not. Once they declined the plea offer, the government dismissed the Superior Court charges and prosecuted Knight and Thorpe on a ten-count indictment in federal court. A jury found Knight and Thorpe guilty on all counts, and the U.S. district court sentenced Knight to more than 22 years’ imprisonment and Thorpe to 25 years’ imprisonment.
On direct appeal, Knight and Thorpe both argued that they had been denied effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. This court, concluding that their claims were “colorable,” United States v. Knight, 824 F.3d 1105, 1113 (D.C. Cir. 2016), remanded the case. Following an evidentiary hearing after remand, the district court denied relief. Although agreeing that Knight’s counsel’s performance was deficient, the court determined that Knight had suffered no prejudice. The court rejected Thorpe’s claim that his counsel was deficient and did not address prejudice. Knight and Thorpe appeal.
For the following reasons, we reverse in part. Knight satisfied his burden under both prongs of the standard for an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, as the government acknowledges, the performance by Knight’s counsel did not meet minimal professional standards. Second, the district court’s determination that Knight suffered no prejudice rested on subsidiary factual findings that ignored the direct effect of his counsel’s deficient performance on Knight’s ability to intelligently assess his options and therefore were clearly erroneous. Viewed properly, the contemporaneous evidence and Knight’s testimony at the evidentiary hearing sufficed to establish a reasonable probability Knight would have accepted the plea offer but for his counsel’s ineffective assistance. In contrast, we agree that Thorpe’s counsel was not ineffective and there was no violation of his Sixth Amendment rights. Accordingly, we affirm as to Thorpe and reverse the denial of Knight’s Sixth Amendment challenge, remanding his case to the district court to provide a remedy consistent with this opinion.

As readers digest the case, I think it worth noting a few things for focus.

First, notice the size of the sentencing differential. The original offer was 2 to 6 years under the guidelines. After rejecting the plea offer, the charges were amended, resulting in sentences for the defendants after conviction of 22 years and 25 years. If the government's determination of a just resolution was initially 2 to 6 years, one must wonder what justifications existed for increasing the sentence 1,000% or more after trial. Was there something more to this decision than punishing the defendants for exercising their Constitutional right to trial?

Second, notice the use of "wired" plea offers in this case and the court's decision regarding how to address (or not address) the significant impact of the ineffective assistance of counsel on a co-defendant.

According to Thorpe, even if his counsel was not deficient, the government must nonetheless reoffer the plea to both defendants, essentially because the generous plea offer in the Superior Court was wired. As Thorpe sees it, despite receiving constitutionally adequate counsel, he has suffered a Sixth Amendment injury “identical” to Knight because the ineffective assistance of Knight’s counsel prevented him from obtaining the benefits of the plea offer. Reply Br. 18. But although Thorpe expressed his desire to accept the plea offer from the outset, he knew that the plea offer was conditioned on both defendants accepting it. Thorpe’s ability to accept the wired plea offer was thwarted by Knight’s uninformed decision to reject it. He was also thwarted by the government’s refusal to unwire the defendants so he could accept the plea offer. Both defendants were convicted by a jury in federal court, and their convictions were affirmed on direct appeal, save for the remand on their ineffective assistance of counsel claims. In these circumstances, where Thorpe’s Sixth Amendment rights were not violated, the court is unaware of any precedent granting relief to one defendant because a co-defendant received the ineffective assistance of counsel. Nor does it seem appropriate to order the government to reoffer a wired plea in order to restore Knight to his original position because were this a different case and Knight’s co-defendant had been acquitted at trial, he would certainly refuse to accept the reissued wired plea, and Knight’s constitutional injury would not be remedied at all.
The appropriate remedy for a defendant who received a wired plea offer but was prevented from taking it solely by his counsel’s ineffectiveness is simply to order the government to extend the offer to that defendant again, without regard to whether his co-defendant would be presently willing to accept the offer. Although this court cannot order that it do so, the government has the discretion to ameliorate any injustice that would result from permitting the inadequately counseled defendant to accept the original plea offer but not the codefendant whose counsel’s performance was adequate. Even now, the prosecution may seek dismissal of some or all of the charges against Thorpe under Rule 48(a) of the Federal Rules of Criminal Procedure. See, e.g., Rinaldi v. United States, 434 U.S. 22 (1977).

In light of the court's above discussion, we must ask ourselves some pointed questions about wired pleas. Should a defendant who is willing to plead guilty and accept responsibility be denied the plea offer because a co-defendant independently and with advice of counsel decides not to follow suit? If so, should the ramifications of that inability to get the co-defendant to plead guilty be measured in decades? What is the explanation for that sentencing differential in this context? Does nothing change for the defendant who wanted to plead guilty even when it turns out that the co-defendant's decision was the result of ineffective assistance of counsel arising to the level of a Constitutional violation? And finally, should the remedy for the eventual result (that result being that the defendant who originally wanted to plead guilty but was prevented by his co-defendant remains in prison for decades) be left to the discretion of the prosecutors who created this sentencing differential in the first place? This case reminds us that there is much work to be done regarding the use and regulation of plea bargaining.