EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, July 5, 2017

My New Article: "Plea Agreements as Constitutional Contracts"

Today, I posted the working draft of my new article, Plea Agreements as Constitutional Contracts, on SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause. This Article then argues that incorporation of one of these protections—the implied covenant of good faith and fair dealing—would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts: (1) substantial assistance motions; (2) Brady disclosures; and (3) prosecutorial presentation of sentencing recommendations.

Any feedback/comments would be appreciated.



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Colin – as usual, a very interesting paper. I was unfamiliar with the issues raised by Justice Brennan’s dissent in Ricketts v. Adamson. I guess I need to stop being surprised about how unfair the courts can be in the application of our constitutional rights, not only in criminal trials, but also (and perhaps, especially) in the case of plea bargains, as the latter “resolve” the vast majority of criminal proceedings. I agree generally with your thesis that plea bargains should be subject to the same (or better) constraints as contract law. Only a couple of points: 1) I’m uncomfortable with an affirmative obligation of the government to file for a downward departure motion based on a generalized provision for “substantial assistance.” Rather, I think that the favor in sentencing needs to be explicit and part of the plea negotiation. The State has considerable discretion on how to charge any offense, and also what sentencing recommendation it makes. They should be explicit to the defendant on what specific benefit he/she gains in return for what cooperation, rather than leaving it open to “we might help you later” and then also be subject to some obligation that can be reviewed by the court as to it’s reasonableness. 2) There is an important part of this not directly addressed by your paper, and that is the impact of unreasonable bail on the entire discussion of plea bargains. As you’ve noted elsewhere, many low-income people end up pleading because they can’t afford the bail, and I consider that unconstitutional coercion in enforcing plea deals where people really are innocent but they can’t afford to stay in jail and lose their jobs, etc. Finally, I think there is an error right after the footnote 407 marker. You say “The Fifth Circuit is one of the courts that has extended Ruiz to substantive evidence,” but then go on to say “In finding that there was no Brady violation, the Fifth Circuit rejected Conroy’s argument that Ruiz only applies to impeachment evidence and not substantive evidence." So, I think you meant in the first sentence “The Fifth Circuit is one of the courts that has not extended Ruiz to substantive evidence.”

Posted by: FormerAgent | Jul 5, 2017 7:02:37 PM

FormerAgent: Thanks for the comments. I agree that the bail component is an important one, and I hope to raise it in a later paper. In terms of the text after footnote 407, I was trying to say that “The Fifth Circuit is one of the courts that has extended Ruiz’s [conclusion that defendant’s aren’t entitled to] Brady evidence] to substantive evidence.” But I agree that it’s awkwardly written. I’m going to re-phrase that.

In terms of substantial assistance motions, could you please explain your comment a bit more? The classic case here is a defendant entering into a plea agreement to help the State investigate/arrest/prosecute the defendant’s alleged accomplice. Typically, these have to be done before the defendant assists the State because the defendant is not going to be willing to wear a wire, testify against co-defendants, etc. until he’s struck his plea deal. And the State, of course, doesn’t want to make an unconditional promise to file a substantial assistance motion because a defendant might, for example, end up recording little/nothing of value on the wire and/or end up being a terrible witness.

This is the reason why most substantial assistance motions are conditional, with the State retaining discretion to determine whether the defendant did in fact render “substantial assistance.” When the prosecutor ends up failing to file and claiming that there wasn’t “substantial assistance,” most courts say that this decision is reviewable only for unconstitutional motives. My argument is that they should be reviewable for bad faith. How would your proposal handle such a situation?

Posted by: Colin Miller | Jul 6, 2017 4:34:11 AM

Colin – thanks for your comments and your question. As your thesis is about how plea agreements should have similar protections as to contracts, my proposal re: substantial assistance motions is similar to commercial contracts with penalties or incentives based on future behavior. I have negotiated quite a few commercial contracts on such a basis, and clarity on exactly what is required by one party to incur a penalty or receive an incentive from the other is essential to a workable contract. Just some quick examples on how that might work at a high level: if defendant can obtain a recorded confession, or controlled purchase of drugs (etc.) from the target of a related investigation, he/she will receive a sentencing recommendation of (whatever level). Or, if Defendant A testifies to substantially the following statement of facts during the trial of Defendant B, he/she will only be charged with the lesser included offense of (whatever offense). Such deals are happening anyway, but the State is largely controlling them because they don’t happen in open court, leaving the defendant in a bad place if the prosecutor doesn’t act in good faith. Indeed, Ruiz basically says that the State can act in bad faith as much as they want as long as the reason isn’t related to race or some other “protected class” (my interpretation). If these deals are done in the open, with the court’s review and approval, then there is less likelihood of the prosecutor acting in bad faith, because the actions required of the defendant and the incentive for doing so are approved by the court up front. Of course, as with any contract, that doesn’t mean that some prosecutors won’t still act in bad faith (e.g., argue that the defendant didn’t really fulfill the requirements, as the Ricketts v Adamson case showed), but at least then the court has a contractual agreement with specific actions and incentives to review, rather than a generalized “we will help you if you help us” promise. As to your points about the State not wanting to make an unconditional promise (e.g. recording something of little value, or the defendant is a terrible witness), my position is that these are fundamentally no different than any other commercial contract negotiation: both parties need to be clear in defining what they need, what they are willing to do, and what the benefit is to each party for doing so. It isn’t that hard for the State to specify what they need: not just a wire recording, but something that can establish the elements of the crime or a confession. It’s good for the defendant to know exactly what is expected in order to get the benefit that may be offered (and I say this as a former agent who wired people to get confessions, or make controlled purchases). Conversely, the State has plenty of opportunity to evaluate the situation regarding the behavior and credibility of the witness before making such a deal; if the defendant testifies to what is expected, it’s not his/her fault that the jury doesn’t believe the testimony.

Posted by: FormerAgent | Jul 6, 2017 5:27:37 PM

One additional point - having such deals negotiation up front and approved by the court would help reduce the times that "backroom" deals are made with jail house snitches, etc., and make clear everyone's incentives for testifying or acting to potentially entrap others. In my view, nothing cleanses like daylight on such deals.

Posted by: FormerAgent | Jul 6, 2017 6:53:40 PM

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