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November 4, 2005

Should we (and could we) require prosecutors to explain plea deals?

As detailed in this story, in Utah some controversy has emerged as a result of questionable plea deals in a few high-profile cases.  In response, the Provo Daily Herald has made an interesting and thoughtful argument here that prosecutors should have to provide a public account of their plea choices:

Prosecutors should go ahead and make their deals as they see fit.  But they should be required to explain why -- especially in cases where a plea deal gives the impression that a suspect is getting off too easily. To the public, a deal may seem to give preferential treatment or suggest that prosecutors are not aggressively doing their jobs....

[W]hile prosecutors may have good reasons for offering or accepting a plea deal, it doesn't bolster their credibility if the public is not told why.  The courts are already shrouded in too much secrecy, and odd-looking deals don't help. A little public communication would do wonders for public understanding of the justice system and enhance the credibility of prosecutors.

Utah already requires judges to explain when they deviate from state sentencing guidelines in drunken driving cases.  The explanations are a good way to ensure that justice is being satisfied.

The same should be true for prosecutors when the make plea deals. Prosecutors are not private attorneys who represent only one party.  They represent the people of the community, and they should explain their reasoning to this important client.

Especially after participating in this great conference at Arizona State University, I continue to believe that, even after Booker, the exercise of prosecutorial discretion in the federal system remains the Achilles heel in all reform efforts.  Would a requirement of explanation for any and all prosecutorial "sentencing choices" improve the exercise of prosecutorial discretion and improve the federal sentencing world?

November 4, 2005 at 07:13 PM | Permalink


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Forcing prosecutors to disclose the rationale for plea agreements could create some difficult dynamics for the government.

Imagine a prosecutor saying this: "We charged the defendant with 10 counts. We always knew that 9 of them would not yield convictions, but we wanted to frighten the defendant into pleading guilty."

Or, imagine a prosecutor saying this: "We are far too busy to actually take our cases to trial. Nine out of ten cases result in a guilty plea, and you can't get a guilty plea without giving the defendant something. If we didn't have guilty pleas we'd need 10 times more prosecutors, 10 times more judges, 10 times more courtrooms, and so forth."

Posted by: Marc Shepherd | Nov 7, 2005 9:43:31 AM

Another issue is if the defendant is anticpating on receiving a downward departure for cooperation in another case - such disclosure would hinder another ongoing investigation.

Secondly, a number of case would not get prosecuted at all as Marc stated. There are cases in which it's a poor case which risks acquittal - which does better - a defendant with no punishment and jeopardy attached, or some punishment with a tail (supervised release to monitor the defendant for a few years after release), or just no prosecution at all because the evidence is weak. Defendant's take these deals simply because while there is a chance at acquital - there is a chance of conviction as well.

Posted by: Deuce | Nov 7, 2005 8:30:23 PM

I must echo the sentiments of the above posters. I'm not quite sure how this would be beneficial from a defendant's perspective. Although I deal only with State prosecutions, I see this as a double edged sword. While it might be helpful for post-conviction review, it could also hurt.

Also, if prosecutors are going to be held "accountable" for their plea offers, it might lead to far more severe offers because they cannot readily "justify" the usual acceptable offers they make.

Posted by: Gideon | Nov 8, 2005 10:15:57 AM

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