ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, August 4, 2005

Plea Bargain is a Contract


A plea bargain is a contract, according to the U.S. Court of Appeals for the Seventh Circuit in a recent decision, and it should be interpreted like one.

In the case, Curtis Barnett head pleaded guilty to being a felon in possession of a gun. In exchange for his plea, he was granted "intensive probation" instead of prison time. Intensive probation gave probation officers the right to search Barnett's home, office, car, or person at any time and without probable cause. This is beyond what ordinary probation allows, and Barnett appealed, claiming that his"blanket waiver of the Fourth Amendment" was invalid and unconstitutional.

A contract, wrote Judge Richard Posner for the court, is presumed to "make both parties better off and do no harm to third parties." He went on:

Nothing in the Fourth Amendment's language, background, or purpose would have justified forcing Barnett to serve a prison sentence rather than to experience the lesser restraint of probation. Nothing is more common than an individual's consenting to a search that would otherwise violate the Fourth Amendment, thinking that he will be better off than he would be standing on his rights. Often a big part of the value of a right is what one can get in exchange for giving it up. Here, given the alternative facing him of a prison sentence, Barnett gave up nothing.

Barnett argued that the open-ended nature of intensive probation made the contract too indefinite to enforce, but Posner noted that even if it were, Barnett wouldn't be entitled to be freed from the probation. If a contract fails for indefiniteness, he noted, the parties are put back where they were before they started. Here, that means that Barnett wouldn't be set free, he'd be back facing prison.

United States v. Barnett, 2005 U.S. App. LEXIS 14432 (7th Cir., July 18, 2005).

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