Thursday, May 29, 2014

Extradition: A New Perspective on the US Plea Bargaining Process

A recent extradition battle in the United Kingdom brings a new perspective to the unique plea bargaining process in the United States.  Paul and Sandra Dunham have been charged in Maryland with an alleged fraud to the tune of $1 million. They are UK citizens awaiting extradition who recently attempted suicide by taking an overdose of drugs rather than be extradited to the United States. 

The Dunhams’ extradition is sought under the 2003 Extradition Treaty between the US and the UK.   That Treaty has been criticized in the UK as one sided for several reasons, including the right to extradite UK citizens for offenses committed against US law, even if those offenses were committed in the UK, for which there is no reciprocal right, and a reduction in the proof required in some cases from prima facie evidence to reasonable suspicion.  There is also a concern that UK citizens extradited to the US will lose their entitled to legal aid that would otherwise be available if they were prosecuted in the UK. 

But, according to counsel for the Dunhams, extradition is being resisted on the ground that the UK is “forcibly sending them to American to face trail in a justice system where plea agreements are effectively forced upon people.”  The argument seems to be twofold:  1) that because of the way plea bargaining takes place in the United States, and the fact that 98% of cases result in guilty pleas, the Dunhams will effectively be required to admit their guilt rather than assert their innocence; and 2) the plea bargaining process produces unjust outcomes in the form of excessive prison sentences.  It should be noted that the Dunhams are in their 50s and vehemently deny their guilt.    

Interestingly, a similar claim was made by David McIntyre, an ex-soldier who was accused of overcharging a US peace group for a security contract.  He claimed he was afraid he would not be able to clear his name if he were extradited because, “In the American judicial system you’ve got a plea bargain system and they’ll sit a piece of paper in front of me and tell me I can either do 20 years hard time in the penitentiary or cough to it and do three years soft time.”   As of this writing, McIntyre has been granted a new appeal based on medical evidence that he suffers from PTSD, and has not been extradited. 

This week, the European Court of Human Rights dismissed their application. 

Yes, the kinds of “we can’t get a fair trial if extradited” claims that routinely are made in extradition proceedings focus on court proceedings  in less-evolved judicial systems in other countries and to the very real potential for  interference with an accused’s right to a fair trial.   But the Dunhams’ claim raises troubling issues about the US plea bargaining process.   Compared to the UK, prosecutors in the US have virtually unfettered and unguided discretion in the plea bargaining process. They also have access to a huge array of potential charges and significantly longer permissible sentences, including harsh mandatory minimum sentences.   If aggregated, the sentence Mr. Dunham faces on the thirteen counts of his indictment would subject him to 390 years’ imprisonment, and for Ms. Dunham’s eight counts her sentence could be 240 years.   While of course the sentence they would receive after a conviction by plea or verdict would not be anywhere near those lengths, those numbers do drive home the point.  And very significantly, in contrast to the strict rules and relatively low sentences that govern sentence reductions for guilty pleas in the UK, the sentencing differentials in the US between pleading guilty or going to trial are enormous.   These arguments have been made and rejected in the United States, but perhaps the international awareness, which is recurrent and compelling, will begin to resonate in extradition proceedings.  As noted in an earlier post, the Europeans have become much more vocal in their criticism of the US death penalty process.    Maybe we will start to hear some international discourse about the unfairnesses in our guilty plea system.   

References:

Human Rights Joint Committee (22 June 2011), “The UK’s bilateral extradition treaties: US-UK Extradition Treaty 2003.” http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15608.htm.

David Barrett, Paul and Sandra Dunham Face Extradition After Strasbourg Refuses to Intervene, The Telegraph, 5/29/14, http://www.telegraph.co.uk/news/uknews/crime/10787454/Paul-and-Sandra-Dunham-face-extradition-after-Strasbourg-refuses-to-intervene.html.

David Brown, British Suicide Pact Couple Fear Plea Bargain as They Face Extradition to the US, The Times of London, 5/27/14, http://www.thetimes.co.uk/tto/news/uk/crime/article4096028.ece.

Felicity A. Morse, David McIntyre, Ex-Soldier, Says he Will Kill Himself if Extradited to the US, The Huffington Post, 4/27/13, http://www.huffingtonpost.co.uk/2013/04/26/david-mcintyre-threatens-suicide-extradited-us_n_3161829.html.

Lissa Griffin, International Spotlight on the Death Penalty, Comparative Law Prof Blog (May 1, 2014), http://lawprofessors.typepad.com/comparative_law/2014/05/international-spotlight-on-the-death-penalty.html.

 

 

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