CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, September 2, 2010

Dervan on Plea Bargaining's Innocence Problem

Dervan lucian Lucian E. Dervan  (Southern Illinois University School of Law) has posted Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve on SSRN. Here is the abstract:

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.

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Mr. Dervan, a former prosecutor (unable to post his name here) out of Harris County, Texas, boasted in the comments section of Simple Justice regarding a Post titled 'Plea-bargaining 201' where he personally observed 95% of cases being pled. If that isn't a reason to reexamine the constitutionality of bargained justice, then consider the data compiled at Injustice Everywhere showing how police caught on camera committing crimes, plea bargain on a daily basis.

In 1984, one of the 95% that he personally plea- bargained with was a white man despite the suspects being described as black. He is also shown to have introduced a weapon as State’s Exhibits having nothing to do with the defendant or the case. The certified case file and police incident report can be found at PROJECT: Not Guilty (a project that names names) on the CASES page.

What say you taxpayer(s), what do you think about paying around $90,000. plus-plus to incarcerate this innocent person (and countless others) via a rogue Assistant D.A. that received permission to do so by the Supreme Court? Now you may stick your heads back in the sand or contact your State Rep. and Sen. until this loophole is filled in? Thank you.

Posted by: The Team | Sep 3, 2010 11:51:35 AM

What Happens in Texas, summarized in the comment, is not unique to Texas. Right now I am trying to get help for a young man who caved after being threatened with 30 years for criminal solicitation of a minor and three public defenders who did nothing to aid him. My review of the "evidence" shows no probable cause for the search and confiscation of his possessions and the arrest. When he elected to plead guilty to one count and, in exchange, was granted probation (and a lifetime sentence as a felon and sex offender), he did not know the terms of probation would be so onerous as to create a virtual prison (e.g., six p.m. curfew, prohibited from using a computer, etc.).

The young man was referred to me by a start-up nonprofit because of my keen interest in helping young people who, unlike the Duke Lacrosse players, do not have the means to hire top-notch attorneys, nor parents with the sophistication to guide them through the system.

Young people like Michael are ripe targets for rogue police and rogue prosecutors. Think what we are doing to our future as a nation, when we allow this to happen to innocent young people.

Posted by: Gloria Wolk | Jan 21, 2013 6:45:39 AM

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