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February 16, 2010

"Plea Bargaining in the Shadow of Terror"

The title of this post is the partial title of this timely new piece on SSRN by Lucian Dervan. The full title is "Plea Bargaining in the Shadow of Terror: Plea Bargaining During the War on Terrorism and the Dual Chambers of the Plea Bargaining Machine," and 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.  The author welcomes comments and suggestions regarding the article.

February 16, 2010 at 03:04 PM | Permalink


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lol this is an easy one. You hide someone where nobody can find them not even a lawyer then beat them with a rubber hose or the modern equiavent every time they open their eyes...and they will plead to whatever!

Posted by: rodsmith3510 | Feb 16, 2010 5:20:38 PM

The article cites three major cases of terrorism that pled out. One wonders if the many of the other cases are lawyer gotchas of a trivial mala prohibita, such as donations to a shady charity, or a disturbed passenger disrupting a flight is labeled a terrorist for the purpose of pumping up the DOJ counts. One would like to see more overall statistics.

Posted by: Supremacy Claus | Feb 16, 2010 10:07:17 PM

It is not at all uncommon for terrorism defendants to confess in open court to their acts without requesting any mercy. These defendants want to make sure that the right people get credit for what they did or tried to do. They aren't ashamed, their proud, much as a soldier would be proud of doing something heroic to defeat an enemy, even if that soldier is ultimately captured.

Failure to plead immediately may represent a calculated decision that a trial will produce more publicity than a quiet plea bargain.

Take away the typical criminal's motive to minimize prison time for violating laws the criminal often agrees are not fundamentally unjust, even if they are unjust as applied to him, and the whole game changes.

The concern is that a high percentage of people insisting on trial may represent a high percentge of innocent defendants whose marginal cases are being pushed by politically pressured prosecutors. This too seems plausible and isn't inconsistent with the terrorist as matyr model given the data.

Posted by: ohwilleke | Feb 17, 2010 12:45:46 AM

None of defendants in the cases cited seems to fit the proud-martyr model. Even the shoe bomber wanted to play down that aspect.

Moreover, it’s difficult to see how three disparate cases -- two of which stemmed from Ashcroft's pre-cog policy (as opposed to tangible evidence of substantive crimes) -- shed much light on the practice of plea bargaining.

Nor did I see much evidence of leniency, with the possible exception of the father of the target in the Lodi case; He did a year in prison for lying to agents to protect his son. His son got 24 years (mostly for having a scary Moslem-sounding slogan stuffed in his wallet...and for lying to agents).

The Shoe Bomber is serving a life sentence. And Lackawanna guys who bailed after a brief unpleasant taste of terrorist camp all drew lengthy prison sentences.

Given the harsh sentences routinely meted out in terrorism cases (be they vapor-thin cases or strong ones), a simpler explanation comes to mind for why more suspects are rejecting deals. At some point trials represent the only plausible, if unlikely, alternative to rotting in prison.

What's was truly terrifying in the author’s examples was the standard used to justify trumping up "material assistance" charges against the Lackawanna Six. The standard apparently was this: unless an investigating agent can “guarantee” his supervisor a suspect won't "do something" at some point in the future, the suspect is going down for years or decades.

Posted by: John K | Feb 17, 2010 4:08:32 PM

Very good post. Made me realize I was totally wrong about this issue. I figure that one learns something new everyday. Mrs Right learned her lesson! Nice, informative website by the way.

Posted by: supra shoes | Nov 11, 2010 1:49:12 AM

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