Thursday, July 20, 2017
Recently, I posted the draft my new article, Plea Agreements as Constitutional Contracts, on SSRN. About a week later, the Supreme Court issued its opinion in State v. King, 2017 WL 2982135 (Or. 2017). In that opinion, Oregon's highest court might have given the clearest articulation yet of the theory of plea agreements as constitutional contracts.
In King, Trevin King was charged with second-degree assault and first-degree robbery based on an attack on a victim.
In the fall of 2013 and early 2014, the parties engaged in negotiations for a plea agreement. The parties first attended a settlement conference with a circuit court judge in October 2013. The issue of what would happen if the victim died was not discussed.
These plea negotiations eventually resulted in a King pleading guilty to second-degree assault and no contest to first-degree robbery in accordance with an oral plea agreement reached with the state. Later, six months after King's plea, the victim died and the State sought to prosecute King for homicide. In response, King sought an order of dismissal, claiming that a homicide charge was precluded by the plea agreement, even though it didn't specifically reference the possibility. The trial court entered an order of dismissal, prompting the State's appeal.
According to the Supreme Court of Oregon,
This case presents an issue of first impression in Oregon that lies at the confluence of the contractual incompleteness of a plea agreement and the waiver of constitutional rights by criminal defendants: whether the state may reprosecute defendant for homicide when the state knew at the time of defendant's plea agreement that the victim could die; when the potential for future prosecution was not a subject of plea negotiations or of the plea agreement; and when defendant relinquished trial-related constitutional rights and entered pleas on non-homicide charges with the belief that the plea agreement ended all prosecutions arising out of the criminal incident.
Both sides cited to contract law in advancing their positions:
In seeking reinstatement of the indictment, the state contends that, applying ordinary principles of contract interpretation, the plea agreement poses no bar to the state's otherwise permissible prosecution of defendant for homicide and that defendant assumed the risk of the victim's death. Defendant rejoins that the contract principles the state advances cannot be woodenly applied when a criminal defendant relinquishes state and federal constitutional rights as part of a negotiated plea. He asserts, among other arguments, that, to address the contingency of the victim's death, the trial court correctly recognized and applied a default contractual term to the plea agreement to bar his reprosecution for homicide.
In addressing the issue, the Supreme Court of Oregon also decided that contract law should apply,
When contracts are incomplete because the parties have not bargained concerning a term that is essential to determining their rights and obligations, so-called default rules are sometimes employed by courts to supply the missing term....Default rules may be based on, among other things, common practices and usages regularly observed in transactions in particular area and, as defendant notes, "basic principles of justice."
Applying this logic, the court agreed with the defense,
in light of the constitutional rights that a defendant gives up when entering into a plea agreement and the requirement that the defendant waive those rights knowingly, the knowledge that the prosecutor possessed that made the victim's death reasonably foreseeable to her, the necessity of allocating the risk, and the certainty that the default rule promotes. We approve a default rule that places the burden on the state—when it is reasonably foreseeable to the prosecutor that the victim may die and the state intends to reserve the right to reprosecute a defendant for homicide in the event of the victim's death—to disclose its intention to the defendant as part of the plea deal, either expressly during negotiations or, preferably, as a term of the plea agreement itself.
Specifically, Oregon's highest court held that
the contractual default rule is grounded not only on contract law concerning omissions in agreements but also on the requirement that he knowingly waive his constitutional rights and on a due process right to enforce his plea agreement....A valid plea agreement “presuppose[s] fairness in securing agreement between an accused and a prosecutor.”
As the United States Supreme Court has more recently stated in regard to plea agreements, "the reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials."...This court has recognized that "plea agreements are crucial to the proper functioning of the criminal justice system."
In such a system of pleas, prosecutors have an incentive to cooperate in ensuring that defendants have access to basic information that would satisfy the requirement that they intelligently enter a plea agreement and waive their rights: the reliability of the plea agreement, because the defendant understood it and knowingly and intelligently accepted it. Among defense counsel, the court, and the prosecutor in this case, it was the prosecutor who was in the best position to foresee and predict that the victim could die, and it was the prosecutor who would likely reprosecute defendant for homicide. The default rule we approve in this case encourages the prosecutor to disclose that risk and potential reprosecution.