The Surprising Lessons from Plea Bargaining in the Shadow of Terror

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 27 No. 2

Georgia State University Law Review‌‌‌‌

Volume 27

Issue 2 Winter 2011 Article 11

1-1-2011

The Surprising Lessons from Plea Bargaining in the Shadow of Terror

Lucien E. Dervan

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Recommended Citation

Dervan, Lucien E. (2010) "The Surprising Lessons from Plea Bargaining in the Shadow of Terror," Georgia State University Law Review: Vol. 27: Iss. 2, Article 11.

Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss2/11

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THE SURPRISING LESSONS FROM PLEA BARGAINING IN THE SHADOW OF TERROR

Lucian E. Dervan*?

ABSTRACT

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining present in the current literature—the administrative theory and the shadow-of-trial theory. The article then offers a new theory of plea bargaining that both expands on these existing theories and combines relevant aspects of each into one overarching model. In doing so, this article provides for a greater understanding of the function of the plea bargaining machine in the criminal justice process, the roles played by its actors, and the factors influencing its operation.

INTRODUCTION

An hour and a half from Paris, American Airlines Flight 63 cruised 39,000 feet above the Atlantic Ocean. Inside, protected from the negative 70 degree temperatures outside the steel fuselage, sat 183

* Assistant Professor of Law, Southern Illinois University School of Law, and former member of the King & Spalding LLP Special Matters and Government Investigations Team.

? A special thanks to Professors Marc Miller, Ellen Podgor, Mark Brown, William Schroeder, and

Christopher Behan for their insightful comments regarding earlier drafts of this article. This article is

dedicated to Dalton, who arrived just as I was completing this piece.

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passengers, many of whom had already drifted off to sleep. In row twenty-nine, however, a tall, unkempt man sat restlessly, his mind likely full of thoughts of both the past that had brought him to this place and the task that lay ahead. He had attempted to board the same flight the day before, but the fact that he had paid cash for his ticket and was carrying no checked luggage so concerned authorities at Charles de Gaulle Airport that they detained him for interrogation until well after the first flight to Miami departed. Now, a mere twenty-four hours later, he was in his desired perch, his message to the world concealed within the soles of his high-top basketball shoes.1

The first scream jolted Thierry Dugeon from his deep sleep in row thirty-nine, the air already ripe with the smell of sulfur. As his eyes adjusted to the scene, he saw the man in front of him fighting off a flight attendant who was grasping for his feet and screaming, “I need some help, I need some help.”2 As Dugeon lunged forward and restrained the man’s arms, five other passengers and crewmembers raced toward them and tackled the stranger. As belts were passed down the rows to create restraints, the man’s shoes, which were smoldering, were dowsed with water.3 Once restrained, a doctor injected the enraged passenger with a sedative, and the plane fell silent. A short while later, outside in the frigid air, two F-15 fighter jets rose out of the dark sky and guided the plane safely to Boston’s Logan Airport.4

1. See Pam Belluck, Crew Grabs Man; Explosive Feared, N.Y. TIMES, Dec. 23, 2001, at A1; Dana Canedy, A Nation Challenged: The Travelers; A “Strange” Traveler Acted, and the Passengers Reacted,

   N.Y. TIMES, Dec. 24, 2001, at A1; Michael Elliott, The Shoe Bomber’s World, TIME, Feb. 25, 2002, at 46, available at www.time.com/time/magazine/article/0,9171,1001865,00.html.

2. Belluck, supra note 1.

3. The above described events are eerily similar to the attempted terrorist attack on Northwest Flight 253 in December 2009 by the “Christmas Day Bomber.” In a similar style to Richard Reid, Umar Farouk Abdulmutallab slipped through airport security by hiding his bomb materials in his underwear. Anahad O’Connor & Eric Schmitt, Terror Attempt Seen as Man Tries to Ignite Device on Jet, N.Y. TIMES, Dec. 26, 2009, at A1 (noting the similarities between the “Christmas Day Bomber” and the “Shoe Bomber”); see also Mark Hosenball, Michael Isikoff & Evan Thomas, The Radicalization of Umar Farouk Abdulmutallab, NEWSWEEK, Jan. 11, 2010, at 37; Charlie Savage, Nigerian Man is Indicted in Attempted Plan Attack, N.Y. TIMES, Jan. 7, 2010, at A14. It is as of yet unknown whether Abdulmutallab will plead guilty to his alleged act of terrorism, but the observations and analysis offered in this article will shed considerable light on the likelihood that he will bypass trial in return for a plea.

4. Belluck, supra note 1; Canedy, supra note 1.

   
   

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   Less than a year later, on October 4, 2002, that tall, unkempt man, Richard Reid, pleaded guilty to eight felony charges, but received no leniency from the prosecution. The charges included attempted murder, attempted use of a weapon of mass destruction, and attempted destruction of an aircraft.5 It is puzzling that a man who spent years training in Afghanistan and traveling the world for al Qaeda scouting for vulnerable targets would choose to plead guilty in a court whose legitimacy he refused even to recognize.6 Though Reid had certainly not lost his fervor for al Qaeda, something stronger than his hatred of America prompted his decision to plead guilty, and Reid is certainly not the only terrorist to so acquiesce.

   Obtaining the exact number of defendants who have pleaded guilty to terrorism or terrorism related charges since September 11, 2001 is impossible because the federal government refuses to release such information. It is estimated though that there have been several hundred convictions of which over 80% resulted from a plea of guilty.7 Although the 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 engage in the acts being prosecuted.8 Consider that Richard Reid

   
   

   
   

5. See Government’s Sentencing Memorandum at 1, U.S. v. Richard Colvin Reid, CR NO. 02- 10013-WGY (D. Mass. Jan. 17, 2003) (containing the government’s arguments as to why Richard Reid should be sentenced to spend the rest of his life in prison).

6. See Elliott, supra note 1, at 49 (detailing Reid’s travels to France, Egypt, Turkey, Pakistan, and

   Afghanistan prior to his attempted bombing of American Airlines Flight 63).

7. While the federal government has previously released both criminal prosecution data and sentencing data through both the United States Sentencing Commission and Transactional Records Access Clearinghouse (TRAC), information related to terrorism prosecutions has not been made public through these forums. In 2006, however, the Department of Justice released a Counterterrorism White Paper, which stated that since 2001 there had been 261 terrorism convictions in 45 jurisdictions, of which 83% were the result of a plea bargain. U.S. DEP’T OF JUSTICE, COUNTERTERRORISM WHITE PAPER 13–14 (June 22, 2006). Also in 2006, The Center on Law and Security released a study that estimated there had been 307 terrorism convictions since 2001, of which 82% were the result of a plea bargain. CTR. ON LAW & SEC., TERRORISM TRIAL REPORT CARD: U.S. EDITION 4 (2006), available at

   http://www.lawandsecurity.org/publications/TTRCComplete.pdf; see also Richard Schmitt, For the

   Justice Department, a Welcome Conviction, LA TIMES, at A15, Apr. 26, 2006 (“[M]ost of the convictions the Justice Department has won since the Sept. 11 attacks have come by defendants pleading guilty to crimes rather than by the government proving its case in a court of law.”).

8. Lucian E. Dervan, Plea Bargaining’s Survival: Financial Crimes Plea Bargaining, a Continued

   Triumph in a Post-Enron World, 60 OKLA. L. REV. 451, 476 (Fall 2007).

   
   

   
   

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   rejected the authority of the American justice system and expressed his continued allegiance to al Qaeda only moments before subjecting himself to the judgment of a United States district court judge.

   While it may be counterintuitive that such a large percentage of terrorism prosecutions are resolved through plea bargains, it appears that even in these extraordinary cases the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article will critique two divergent and dominant theories of plea bargaining in the current literature and offer a modified theory that harmonizes the conflict between these two perspectives.

   In Section I, this article examines the history of plea bargaining and the two theories which dominate the current literature.9 The first theory, the administrative theory, argues that plea bargaining triumphed because of the...