Friday, February 12, 2010
Lucian E. Dervan (Southern Illinois University School of Law) has posted Plea Bargaining in the Shadow of Terror: Plea Bargaining During the War on Terrorism and the Dual Chambers of the Plea Bargaining Machine on SSRN. Here is the abstract:
While obtaining the exact number of defendants who have pleaded guilty to terrorism or terrorism related charges since September 11, 2001 is impossible due to the federal government’s refusal to release such information, it is estimated that there have been several hundred convictions of which over 80% resulted from a plea of guilty. While this plea rate for terrorism cases is certainly lower than the plea rate for other federal offenses, which on average has remained above 95% for almost every year since 1999, a plea rate in excess of 80% is remarkably high given the psyche of those who would engage in the acts being prosecuted. This article seeks to understand why a terrorist would plead guilty and, by the same token, why the United States government would offer leniency to an admitted enemy in the war on terrorism in return for such a plea. Through this analysis, a quarter century of plea bargaining theory will be reevaluated and the existing conflict between two competing theories of plea bargaining will be harmonized into a more encompassing theory that better explains the operation of the entire plea bargaining process.
This article is particularly timely as recently released information from the government indicates that the Christmas Day Bomber, Umar Farouk Abdulmutallab, is cooperating with the FBI and may be preparing to enter into a plea agreement. If this is true, this will serve as yet another example of the significance of plea bargaining in the American criminal justice system and the importance of further examination of its operation. Though this article focuses on terrorism prosecutions as a vehicle for exploring plea bargaining, the article’s proposed theory regarding the operation of the plea bargaining machine applies to all manner of criminal prosecution.