Amicus Curiae Brief — Louis Taylor, Petitioner v. Pima County, Arizona, et al.

No. 19-756

__________________________________________________________________

IN THE

Supreme Court of the United States

___________________________________________

LOUIS TAYLOR,

Petitioner,

v.

PIMA COUNTY, ARIZONA, et al.,

Respondents.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________________________________________________________

BRIEF OF LUCIAN E. DERVAN AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________________________________________________________________

LUCIAN E. DERVAN

CHARLES A. TROST

Belmont University

Counsel of Record

College of Law

Belmont University

1900 Belmont Blvd

College of Law

Nashville, TN 37212

1900 Belmont Blvd

(615) 460-8271

Nashville, TN 37212

lucian.dervan@belmont.edu (615) 460-8299

charles.trost@belmont.edu

Counsel for Amicus Curiae

January 9, 2020

______________________________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 3

I.

Plea bargaining is a relatively modern

American creation, the inner workings and

psychological aspects of which are only now

beginning to be understood ......................... 3

II.

Psychological research demonstrates the

existence of the innocent defendant’s

dilemma and the unreliability of pleas of

guilty resulting from bargains .................... 9

III.

The Taylor case presents an opportunity for

the Court to acknowledge that plea

bargaining is not a reliable indicator of

actual guilt and that innocent defendants do

plead guilty ................................................ 17

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Bordenkircher v. Hayes,

434 U.S. 357, 365 (1978) ................................. 6

Brady v. United States,

397 U.S. 742 (1970) ................................. 2, 6, 7

Bram v. United States,

168 U.S. 532 (1897) ......................................... 4

Hill v. Lockhart,

474 U.S. 52, 58 (1985) ..................................... 7

Lafler v. Cooper,

566 U.S. 156, 170 (2012) ....................... 2, 3, 17

Lee v. United States,

137 S.Ct. 1958, 1973 (2017) ...................... 8, 18

Menna v. New York,

423 U. S. 61, 62 n.2 (1975) .......................... 2, 7

Missouri v. Frye,

566 U.S. 134, 143 (2012) ................................. 4

Rex v. Warickshall,

168 Eng. Rep. 234 (1783) ................................ 4

Taylor v. County of Pima,

913 F.3d 930, 939 (2019) ........................... 2, 19

iii

TABLE OF AUTHORITIES

(continued)

Wright v. Rindskopf,

43 Wis. 344, 354 (1877) ................................... 4

Other Material

Albert W. Alschuler, Plea

Bargaining and Its History,

29 COLUM. L. REV. 1 (1979) .......................... 4, 5

American Bar Association,

Project on Standards for

Criminal Justice, Standards

Relating to Pleas of Guilty 2 (1968) ................ 6

Innocents Who Plead Guilty,

National Registry of Exonerations

(24 Nov. 2015), available at

http://www.law.umich.edu/special/

exoneration/Documents/

NRE.Guilty.Plea.Article1.pdf. ................. 13, 14

Kelsey S. Henderson & Lora M. Levett,

Investigating Predictors of True and

False Guilty Pleas, 42 Law and Human

Behavior 427 (2018) ................................. 12, 13

iv

TABLE OF AUTHORITIES

(continued)

Lucian E. Dervan, Class v. United

States: Bargained Justice and a

System of Efficiencies, in CATO

Supreme Court Review 2017–2018,

113, 131 (2018) ......................................... 11, 17

Lucian E. Dervan, Bargained

Justice: The History, Psychology,

and Future of Plea Bargaining, 31

FEDERAL SENTENCING REPORTER 239

(2019) ............................................................... 4

Lucian E. Dervan, Bargained

Justice: Plea Bargaining’s Innocence

Problem and the Brady Safety-Valve,

UTAH L. REV. 51 (2012) ........................ 4, 5, 7

Lucian E. Dervan & Vanessa A. Edkins,

The Innocent Defendant’s Dilemma:

An Innovative Empirical Study of Plea

Bargaining’s Innocence Problem, 103 J.

Crim. L. & Criminology 1 (2013) ............... 9, 11

v

TABLE OF AUTHORITIES

(continued)

Miko M. Wilford & Gary L. Wells,

Bluffed by the Dealer:

Distinguishing False Pleas from

False Confessions, 24 Psychology,

Public Policy, and Law 158 (2018) .......... 12, 13

National Comm’n on Law Observance

and Enforcement, Report on the

Enforcement of the Prohibition

Laws of the United States 100–01

(1931) ................................................................ 5

Over-Criminalization 2.0: The Symbiotic

Relationship Between Plea

Bargaining and Overcriminalization,

7 The Journal of Law, Economics,

and Policy 645 (2011) ..................................... 20

Transcript of Oral Arg. at 61–62,

Class v. United States, 138 S. Ct.

798 (2018) (No. 16-424) .................................... 4

vi

TABLE OF AUTHORITIES

(continued)

Vanessa A. Edkins & Lucian E. Dervan,

Freedom Now or a Future Later:

Pitting the Lasting Implications of

Collateral Consequences Against

Pretrial Detention in Decisions to

Plead Guilty, 24 Psychol. Pub.

Pol’y & L. 204 (2018) ................................ 15, 19

Vanessa A. Edkins & Lucian E. Dervan,

Pleading Innocents: Laboratory

Evidence of Plea Bargaining’s

Innocence Problem, 21 Current

Res. SOC. PSYCHOL. 14 (2013) ..................... 9

1

INTEREST OF THE AMICUS CURIAE1

Amicus is an Associate Professor of Law and

the Director of Criminal Justice Studies at Belmont

University College of Law in Nashville, Tennessee.

Amicus is a member of the Florida and Georgia Bar

Associations. Prior to joining the legal academy,

Amicus practiced both criminal and civil law. Since

joining the legal academy in 2009, Amicus has

authored over a dozen articles regarding plea

bargaining, including pieces about the history of plea

bargaining and about the phenomenon of false pleas

of guilty. Amicus has also conducted psychological

studies that demonstrate that a majority of

individuals will falsely confess to misconduct in which

they did not engage in return for the benefits of a

bargain. The interest of Amicus in this case is simply

that of a friend of this Court.

SUMMARY OF ARGUMENT

Louis Taylor, the petitioner, accepted an offer

to plead no contest and go home after spending 42

years behind bars following his wrongful conviction.

This Brief is filed after having provided notice to counsel

of record for all parties as required by Rule 37.2.a. Amicus has

also received consent from all parties to file this Brief. No person

other than the Amicus and his counsel have authored or

contributed to this Brief in whole or in part. Further, no person

or entity, other than the Amicus and his affiliated institution,

Belmont University College of Law, has made a monetary

contribution toward its preparation or submission.

1

2

As Judge Schroeder stated in the lower court, “He

accepted the offer, since his only alternative was to

stay in prison and wait for his petition for collateral

relief to wend its way through the courts, a process

that could take years.” Taylor v. County of Pima, 913

F.3d 930, 939 (2019) (Schroeder, J., Dissenting). That

after over four decades the Taylor case should

conclude with a plea 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.”

In granting petitioner’s request for Writ of Certiorari,

the Court has the opportunity to address the

important issue of whether a person should be barred

from recovering damages for wrongful imprisonment

because, as a condition of immediate release, he or she

pleaded no contest to time served.

In granting petitioner’s request and examining

the above issue, the Court also has the opportunity to

correct an unsupported and erroneous assumption

about the reliability of plea bargaining, one that has

permeated case law in this area since the Court

approved of plea bargaining in the 1970 case Brady v.

United States, 397 U.S. 742 (1970). For example, in

1975 in the case of Menna v. New York, 423 U. S. 61,

62 n.2 (1975), 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.”

Recent psychological research, however, has

demonstrated that individuals plead guilty for many

3

reasons, some of which have little or nothing to do

with their actual guilt. The Taylor case is one such

example, where obtaining immediate release from

prison, rather than waiting years for collateral relief,

was the determinative issue. Accepting the Taylor

case for review, therefore, affords the Court an

important opportunity to acknowledge that plea

bargaining is not a reliable indicator of actual guilt

and that, as anecdotal cases, empirical evidence, and

psychological studies now demonstrate, innocent

defendants plead guilty in our system. Whatever

result the Court ultimately reaches in Taylor, the

decision should be contemplated and delivered in a

manner that acknowledges and considers this reality

of our modern criminal justice system.

Amicus, therefore, urges the Court to grant

Taylor’s petition for a Writ of Certiorari.

ARGUMENT

I.

Plea bargaining is a relatively modern

American creation, the inner workings

and psychological aspects of which are

only now beginning to be understood.

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.” Almost 98 percent of criminal

convictions in the federal system and 94 percent of

4

criminal convictions in the state systems result from

a plea of guilty. See Missouri v. Frye, 566 U.S. 134,

143 (2012). While the exact number of these pleas

resulting from “plea bargaining” is unknown, the

government has estimated that approximately 75

percent of such pleas of guilty in the federal system

are induced by threats of further punishment if a

defendant proceeds to trial, by offers of leniency in

return for waiving the constitutionally protected right

to trial, or both. See Transcript of Oral Arg. at 61–62,

Class v. United States, 138 S. Ct. 798 (2018) (No. 16424).

Despite bargained justice’s dominance today,

this form of criminal case resolution is a relatively

modern American creation. See Lucian E. Dervan,

Bargained Justice: The History, Psychology, and

Future of Plea Bargaining, 31 FEDERAL SENTENCING

REPORTER 239 (2019); Lucian E. Dervan, Bargained

Justice: Plea Bargaining’s Innocence Problem and the

Brady Safety-Valve, UTAH L. REV. 51 (2012); Albert W.

Alschuler, Plea Bargaining and Its History, 29

COLUM. L. REV. 1 (1979). In both American and

English common law prior to the twentieth century,

the use of threats of punishment or offers of leniency

to induce a plea of guilty was impermissible. See e.g.

Bram v. United States, 168 U.S. 532 (1897); Rex v.

Warickshall, 168 Eng. Rep. 234 (1783). When plea

bargaining began to appear in the United States after

the American Civil War, therefore, appellate courts

responded with sharp condemnation. See e.g., Wright

v. Rindskopf, 43 Wis. 344, 354 (1877).

5

Despite the existence of strong English

common law traditions regarding the voluntariness of

confessions and the presence of American appellate

court rejections of early bargains, plea bargaining

continued to grow in the shadows as the nation

entered the twentieth century for at least two reasons.

First, “plea agreements” were used to mask

corruption in the early 1900s.

See Albert W.

Alschuler, Plea Bargaining and Its History, 29

COLUM. L. REV. 1, 22 (1979). Second, plea bargaining

became a necessary tool to address the swelling

dockets brought on by Prohibition and other forms of

overcriminalization during this same period. See

NATIONAL COMM’N ON LAW OBSERVANCE AND

ENFORCEMENT, REPORT ON THE ENFORCEMENT OF THE

PROHIBITION LAWS OF THE UNITED STATES 100–01

(1931) (discussing the need for plea bargaining to

address the overwhelming number of cases brought

under Prohibition laws). The resulting impact on case

resolutions can be observed in data regarding pleas of

guilty in the federal system between the early

twentieth century and 1925, which grew from 50

percent to 90 percent.

See Lucian E. Dervan,

Bargained Justice: Plea Bargaining’s Innocence

Problem and the Brady Safety-Valve, UTAH L. REV. 51,

59 (2012).

Plea bargaining began emerging from the

shadows in the second half of the twentieth century,

particularly as this Court and institutions such as the

American Bar Association began both acknowledging

6

the role of plea bargaining in the criminal justice

system and identifying the benefits afforded by

permitting these types of resolutions.

See e.g.

American Bar Association, Project on Standards for

Criminal Justice, Standards Relating to Pleas of

Guilty 2 (1968). A pivotal point, of course, was this

Court’s 1970 decision in Brady v. United States, 397

U.S. 742 (1970), which legitimized the concept of plea

bargaining as long as the plea of guilty was voluntary

and intelligent and any offers of leniency or threats of

punishment did not overbear the will of the

defendant. See Brady v. United States, 397 U.S. 742,

752–58 (1970).

Acknowledging and approving, even if tepidly,

the use of plea bargaining in Brady created an

opportunity for an already overwhelmed criminal

justice system to continue to benefit from the

efficiency of this process. The Brady decision also

created an environment in which plea bargaining

could leave the shadows of its rise and, perhaps,

become better regulated and more regularly examined

by the courts. This sentiment was expressed by this

Court eight years after Brady in stating, “[A] rigid

constitutional rule that would prohibit a prosecutor

from acting forthrightly in his dealings with the

defense could only invite unhealthy subterfuge that

would drive the practice of plea bargaining back into

the shadows from which it has so recently emerged.”

Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978). In

many respects, cases decided since Brady have

embarked on this course, seeking to add detail and

7

clarity to the operation and impact of bargained

justice.

Throughout these many decades, however,

decisions appear often to have been influenced by the

unsupported assumption that pleas of guilty are

reliable. This assumption dates back to the Brady

decision itself, where the Court said, “[W]e would

have serious doubts about this case if the

encouragements of guilty pleas by offers of leniency

substantially

increased

the

likelihood

that

defendants, advised by competent counsel, would

falsely condemn themselves. But our view is to the

contrary….” Brady v. United States, 397 U.S. 742,

758 (1970); see also Lucian E. Dervan, Bargained

Justice: Plea Bargaining’s Innocence Problem and the

Brady Safety-Valve, UTAH L. REV. 51 (2012). This

unsupported assumption appeared again in the 1975

case of Menna v. New York, 423 U. S. 61, 62 n.2 (1975),

which 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.” Again in the 1985

case of Hill v. Lockhart, 474 U.S. 52, 58 (1985), the

Court, quoting language from the United States Court

of Appeals for the Seventh Circuit, similarly said,

“[T]he concern that unfair procedures may have

resulted in the conviction of an innocent defendant is

only rarely raised by a petition to set aside a guilty

plea.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). More

recently, this concept of the reliability of pleas of

guilty was echoed in a 2017 dissent in the case of Lee

8

v. United States. See Lee v. United States, 137 S.Ct.

1958, 1973 (2017) (Thomas, C., dissenting) (“In any

event, the Court in Hill recognized that guilty pleas

are themselves generally reliable.”).

It is understandable that one would assume

that pleas of guilty are reliable indicators of guilt. We

would all like to believe that if faced with an

opportunity to falsely confess in return for a favorable

disposition, we would nevertheless stand our ground

and assert our innocence. Recent psychological

research, however, demonstrates that this is not in

fact how people respond in these situations and that

pleas of guilty are far from reliable indicators of actual

guilt. People, it turns out, plead guilty for many

reasons, some of which have little or nothing to do

with whether they committed the alleged offense.

Amicus writes to provide the Court with

information regarding our modern scientific

understanding of plea bargaining and defendant

decision-making processes in hopes that this and

future decisions will not rely on prior assumptions

regarding the reliability of pleas of guilty, but rather,

reflect the reality of modern plea bargaining, the

innocent defendant’s dilemma, and the phenomenon

of false pleas of guilty.

9

II.

Psychological research demonstrates the

existence of the innocent defendant’s

dilemma and the unreliability of pleas of

guilty resulting from bargains.

In the late 2000s, Amicus and Dr. Vanessa

Edkins, a psychologist, discovered that little

psychological research had been done to better

understand the inner psychological workings of the

plea bargaining machine or the reliability of the

process. In response to this realization, Amicus and

Dr. Edkins created a study paradigm (the EdkinsDervan Plea Bargaining Paradigm) to test how likely

it might be that an innocent individual would falsely

plead guilty in return for the benefits of a bargain.

See Lucian E. Dervan & Vanessa A. Edkins, The

Innocent Defendant’s Dilemma: An Innovative

Empirical Study of Plea Bargaining’s Innocence

Problem, 103 J. CRIM. L. & CRIMINOLOGY 1 (2013);

Vanessa A. Edkins & Lucian E. Dervan, Pleading

Innocents: Laboratory Evidence of Plea Bargaining’s

Innocence Problem, 21 CURRENT RES. SOC. PSYCHOL.

14 (2013).

To test this aspect of defendant decisionmaking, Amicus and Dr. Edkins invited students to

participate in a project that the students believed was

designed to test individual work versus group work

through a series of LSAT-style questions. The inquiry,

of course, was really a deception study designed to

explore how the students would respond when

accused of cheating.

10

To examine this phenomenon, all of the

students who participated in the test

were accused of cheating on the

individual work portion. Through the

use of a confederate in the room, the

study was structured so that only about

half of the students actually engaged in

cheating. The other half completed the

test without any misconduct occurring.

Regardless of factual guilt or innocence,

and without yet knowing which of the

participants had actually cheated, all of

the participants were offered a bargain

in return for confessing to the alleged

offense. If the student admitted to

cheating, they would lose their

compensation for participating in the

study. This was viewed as akin to

probation

or

time

served.

The

participant was also informed that if

they refused the deal, the matter would

be referred to an “Academic Review

Board.” This board was described to the

participants in a manner that made it

sound very similar to a criminal jury

trial, including the right to present

evidence and testify. If convicted before

the board, the participants were told

that they would lose their compensation,

their faculty adviser would be notified,

11

and they would be required to attend an

ethics course.

This ethics course was viewed as a loss

of time, akin to a period of incarceration.

While this scenario did not perfectly

recreate the actual criminal justice

system, the anxieties experienced by

participants were similar to, though

presumably not as intense as, those

experienced by people facing criminal

charges.

Further,

this

research

advanced

our

understanding

of

defendant decision-making in ways that

earlier

studies

utilizing

only

hypothetical scenarios could not.

See Lucian E. Dervan, Class v. United States:

Bargained Justice and a System of Efficiencies, in

CATO SUPREME COURT REVIEW 2017–2018, 113, 131

(2018). The results of the study were insightful and

brought to an end the longstanding debate regarding

whether innocents will falsely plead guilty. In the

Edkins-Dervan Plea Bargaining Paradigm, 89

percent of the guilty participants took the plea offer.

With regard to the innocents, 56 percent of the

participants were willing to falsely confess to an

offense they had not committed in return for the

benefits of the bargain. See Lucian E. Dervan &

Vanessa A. Edkins, The Innocent Defendant’s

Dilemma: An Innovative Empirical Study of Plea

12

Bargaining’s Innocence Problem, 103 J. CRIM. L. &

CRIMINOLOGY 1, 34-38 (2013).

These research findings have been cited widely

in both the psychological and legal communities and

the Edkins-Dervan Plea Bargaining Paradigm has

been used and validated several times in subsequent

studies by other labs. See e.g. Kelsey S. Henderson &

Lora M. Levett, Investigating Predictors of True and

False Guilty Pleas, 42 Law and Human Behavior 427

(2018); Miko M. Wilford & Gary L. Wells, Bluffed by

the Dealer: Distinguishing False Pleas From False

Confessions, 24 Psychology, Public Policy, and Law

158 (2018). Research by other labs has also allowed

the legal and psychological communities to learn more

about specific aspects of defendant decision-making.

For example, in 2018 Kelsey Henderson and Lora

Levett published a study using the Edkins-Dervan

Plea Bargaining Paradigm that included testing the

influence of advocate participation during the

decision-making process. The research found that the

effect of advocate recommendations on plea-decisions

was significant. Where no advocate participated, the

study participants falsely pleaded guilty 35% of the

time.

Where an advocate participated and

recommended proceeding to trial, the false plea rate

dropped to 4%. Importantly, where an advocate

participated and provided only educational

information regarding the available options, 47% of

the study participants went on to falsely plead guilty.

Where an advocate participated and recommended

pleading guilty, 58% of the study participants went on

13

to falsely plead guilty, a number higher than that

found when there was no advisor at all. Contrary to

earlier assumptions regarding the beneficial role of

counsel in preventing false pleas of guilty, these

findings demonstrate that the presence of counsel

could actually exacerbate the false plea phenomenon.

See Kelsey S. Henderson & Lora M. Levett,

Investigating Predictors of True and False Guilty

Pleas, 42 Law and Human Behavior 427, 434-35

(2018). In 2018, Miko Wilford and Gary Wells

published another study applying the Edkins-Dervan

Plea Bargaining Paradigm.

In reporting their

findings regarding significant levels of innocent

participants falsely pleading guilty, they specifically

noted that there are now several “real-stakes,” nonhypothetical, studies recording false plea rates near

or exceeding 50%. See Miko M. Wilford & Gary L.

Wells, Bluffed by the Dealer: Distinguishing False

Pleas from False Confessions, 24 Psychology, Public

Policy, and Law 158, 166 (2018).

Beyond the numerous studies discussed above

that confirm the unreliability of plea bargaining and

the fact that innocents are willing to falsely confess,

there is empirical evidence from actual cases.

Consider, for example, a 2015 report from the

National Registry of Exonerations on the issue of

“Innocents Who Plead Guilty.” See Innocents Who

Plead Guilty, National Registry of Exonerations (24

Nov.

2015),

available

at

http://www.law.umich.edu/special/exoneration/Docu

ments/NRE.Guilty.Plea.Article1.pdf.

Of the first

14

1,700 exonerees in the database, 15 percent had

pleaded guilty to an offense they had not committed.

In some types of cases, the rates of false pleas were

astonishingly high.

For example, drug crimes

comprised 40 percent of all guilty plea exonerations,

with 66 percent of exonerations involving a false plea

of guilty. In Harris County, Texas, the report noted

that there had been 71 drug exonerations since 2014,

and the defendant in every case had pleaded guilty.

According to the National Registry of Exonerations,

“[M]ost of these defendants accepted plea bargains to

possession of illegal ‘drugs’ because they faced months

in jail before trial, and years more if convicted.” Id. at

2.

Over the last several years, Amicus and Dr.

Edkins, along with members of a large international

research team, have worked to run an updated and

expanded version of the Edkins-Dervan Plea

Bargaining Paradigm simultaneously in the United

States, Japan, and South Korea. The new version of

the study contains amended aspects of the paradigm

to gain deeper insights into defendant decisionmaking, including a uniform stigma condition

regardless of whether the participant accepts the offer

or proceeds to trial, a greater role for defense counsel,

and a requirement of cooperation against codefendants, including an agreement to testify against

the other individual at trial. Though not yet complete,

data obtained to date from this work again validates

the phenomenon of false pleas of guilty. Further, data

from the study indicates that participants are willing

15

not only to falsely implicate themselves, but also to

falsely implicate others. Just as people are willing to

lie to receive the benefits of a bargain, they are also

willing to lie about the role of someone else to secure

those benefits.

Another recent psychology study also contains

information directly relevant to the decision-making

process experienced by Mr. Taylor in this matter.

Released in 2018, the study considered the issues of

innocence, pretrial detention, and collateral

consequences through the use of various hypothetical

scenarios. See Vanessa A. Edkins & Lucian E.

Dervan, Freedom Now or a Future Later: Pitting the

Lasting Implications of Collateral Consequences

Against Pretrial Detention in Decisions to Plead

Guilty, 24 PSYCHOL. PUB. POL’Y & L. 204 (2018).

Participants in this study were asked to review

scenarios involving a student charged with a drug

offense, a nurse charged with assault, and an

unemployed individual living with two children in

public housing and charged with breaking and

entering. Participants were then asked to decide

whether to accept a plea agreement or proceed to trial.

Various conditions were imposed on different portions

of the study population to ascertain the influence of

factors such as innocence, pretrial detention, and the

collateral consequences that would emanate from

their conviction. The collateral consequences

described to those falling into the “aware of collateral

consequences of conviction” condition prior to deciding

whether to accept a plea agreement included the loss

16

of the right to vote, ineligibility for student loans, loss

of professional licenses, and ineligibility for public

housing and food stamps. The results confirmed the

validity of the legal community’s concerns regarding

the impact of plea offers on both the accuracy of the

system and the free exercise of individuals’

constitutional right to trial.

First, the study found participants

assigned to both the factually guilty and

factually innocent conditions electing to

plead guilty, thus once again confirming

the innocence phenomenon. Second,

direct knowledge of relevant collateral

consequences did not alter defendant

decision-making, despite the sometimes

life-long impact of these measures.

Though disturbing, this finding is

consistent with psychological research

on temporal discounting, which posits

that later consequences have less impact

on decision-making than immediate

ones.

Here,

more

immediate

considerations,

such

as

reduced

sentences or release from pretrial

detention, drove the participants’

choices. Third, the study found that

pretrial

detention

significantly

influenced plea decisions. Of particular

importance here, the rate of innocent

individuals who pleaded guilty tripled in

the pretrial scenarios.

17

Lucian E. Dervan, Class v. United States: Bargained

Justice and a System of Efficiencies, in CATO

SUPREME COURT REVIEW 2017–2018, 113, 134 (2018).

Through this new study and the many others now

being conducted around the world, we are beginning

to better understand the forces that contribute to plea

bargaining’s innocence issue, including sentencing

differentials, pretrial detention, and risk aversion.

III.

The Taylor case presents an opportunity

for the Court to acknowledge that plea

bargaining is not a reliable indicator of

actual guilt and that innocent defendants

do plead guilty.

The Taylor case presents an opportunity for the

Court to acknowledge that plea bargaining is not a

reliable indicator of actual guilt and that, as anecdotal

cases, empirical evidence, and psychological studies

demonstrate, innocent defendants in fact do plead

guilty in our system in numbers that are cause for

concern.

The Taylor case and all future plea

bargaining jurisprudence should be examined with

this reality in mind, rather than the false assumption

of reliability that has pervaded cases since Brady in

1970. “[C]riminal justice today is for the most part a

system of pleas, not a system of trials.” Lafler v.

Cooper, 566 U.S. 156, 170 (2012). Therefore, we must

begin creating jurisprudence regarding this

fundamental aspect of our system that recognizes the

18

true nature of bargained justice and the manner in

which efficiency now impacts accuracy. For these

reasons, Amicus urges the Court to grant Taylor’s

petition for a Writ of Certiorari.

In acknowledging the inherently unreliable

nature of plea bargaining, the Court need only

continue down the path created in 2017 in Lee v.

United States, 137 S. Ct. 1958 (2017). Lee examined

whether a defendant who had agreed to plead guilty

in reliance on his attorney’s mistaken assurances that

he would not be deported should be afforded relief.

Writing for the majority, Chief Justice Roberts wrote,

But for his attorney’s incompetence, Lee

would have known that accepting the

plea agreement would certainly lead to

deportation. Going to trial? Almost

certainly.

If deportation were the

“determinative issue” for an individual

in plea discussions, as it was for Lee; if

that individual had strong connections

to this country and no other, as did Lee;

and if the consequences of taking a

chance at trial were not markedly

harsher than pleading guilty, as in this

case, that “almost” could make all the

difference.

Id. at 1968-69. Applying this logic, the Court reversed

the lower court, which had denied the petitioner’s

19

request to vacate his conviction and withdraw his

guilty plea. Chief Justice Roberts’s framing of the

discussion as one about “determinative issues” is

important because it reflects the reality that

defendants plead guilty for a variety of reasons, some

of which might have little to do with the underlying

facts of the case, something known well to all those in

the trenches of the criminal justice system. As the

2018 collateral consequences study confirms,

considerations such as sentencing differentials,

pretrial detention, and risk aversion often lead to

pleas of guilty, even for the innocent. See Vanessa A.

Edkins & Lucian E. Dervan, Freedom Now or a Future

Later: Pitting the Lasting Implications of Collateral

Consequences Against Pretrial Detention in Decisions

to Plead Guilty, 24 PSYCHOL. PUB. POL’Y & L. 204

(2018).

In this case, the “determinative issue” for

Taylor was release from prison after spending 42

years behind bars following his wrongful conviction.

As Judge Schroeder stated in the lower court, “He

accepted the offer, since his only alternative was to

stay in prison and wait for his petition for collateral

relief to wend its way through the courts, a process

that could take years.” Taylor v. County of Pima, 913

F.3d 930, 939 (2019) (Schroeder, J., Dissenting). A

starting place for an analysis of the impact of Taylor’s

decision to plead no contest should be the

acknowledgment that his plea says little, if anything,

about the merits of the underlying criminal case.

Once acknowledged, the question then arises as to

20

whether someone should be further punished and

prevented from bringing suit for alleged grievous

deprivations of civil rights simply for doing the

rational and now commonly accepted thing; pleading

no contest or guilty in return for the benefits of the

bargain, even where the individual is not actually

guilty of the charged conduct. If we are to prevent

someone so aggrieved from brining suit, are we not

creating a mechanism and an incentive for alleged

misconduct to be protected from review and

consequence by the plea bargaining system? See

Over-Criminalization 2.0: The Symbiotic Relationship

Between Plea Bargaining and Overcriminalization, 7

THE JOURNAL OF LAW, ECONOMICS, AND POLICY 645

(2011).

CONCLUSION

Though plea bargaining has existed in the

shadows of our criminal justice system for well over

100 years and grew to dominance in the twentieth

century, we are still learning much regarding the

process by which defendant’s engage in decisionmaking within the system. Today, we know that

defendants plead guilty for a variety of reasons, some

of which have little or nothing to do with actual guilt.

As the Court considers the Taylor matter and what

the future might hold for plea bargaining

jurisprudence more generally, the Court should

ensure that this and future decisions are not made

based on prior erroneous assumptions, but rather,

that the path forward is guided by what we now know

21

about bargained justice. Through such an informed

and considered process, the Court has the opportunity

to

prevent

an

injustice,

reinvigorate

the

meaningfulness and presumption of innocence, and

still allow for the efficiency and beneficial aspects of

bargains.

For the foregoing reasons, Amicus urges the

Court to grant Taylor’s Petition for a Writ of

Certiorari.

Respectfully submitted,

LUCIAN E. DERVAN

CHARLES A. TROST

Belmont University

Counsel of Record

College of Law

Belmont University

1900 Belmont Blvd

College of Law

Nashville, TN 37212

1900 Belmont Blvd

(615) 460-8271

Nashville, TN 37212

lucian.dervan@belmont.edu (615) 460-8299

charles.trost@belmont.edu

Counsel for Amicus Curiae