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May 15, 2020

How might an "Office of Plea Integrity" be best constructed and tasked to improve our bargained system of justice?

The question in the title of this post is a riff off this great new commentary from Clark Neily that seeks to turn the many lemons of the Flynn kerfuffle into tasty criminal justice reform lemonade.  The extended piece, headlined "Department of Injustice," is worth a read in full, and here is how it starts and closes:

While the Michael Flynn prosecution is currently imploding, no matter how it ends, the key lesson is clear: The nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  Congress should act immediately to restore public confidence in the integrity of our criminal justice system by reforming this fundamentally lawless and un-American practice.  And the Flynn case shows why that reform should be a top legislative priority....

Simply put, the reason we still have no clear understanding of precisely what Flynn did or didn’t do, and what crimes he did or didn’t commit, is because the entire case against him boils down to an in-court admission that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt, just as more than 90% of federal criminal defendants do today.  Indeed, it is hardly an exaggeration to say that criminal jury trials are nearly extinct on American soil: Some 97.4% of federal criminal convictions are obtained through plea bargains, and in some judicial circuits, it’s as high as 99%.

Recent developments in the Flynn case, including evidence that senior FBI officials engaged in shockingly inappropriate, perhaps even criminal, behavior during the Flynn investigation, give rise to a stark but crucial question: How many other guilty pleas would disintegrate as spectacularly as Flynn’s if the underlying case were subjected to the same searching review that Flynn’s finally received more than two years after the entry of his guilty plea?

Proponents of the current plea-driven system will likely counter that Flynn’s case was a politicized fluke, nothing more.  But there are good reasons to doubt that assurance. Consider the 2018 prosecution of rancher Cliven Bundy in Nevada for inciting violence against federal agents in the midst of a dispute over federal grazing land.  That case was dismissed with prejudice after the judge determined that DOJ prosecutors showed a “reckless disregard for the constitutional obligation to seek and provide evidence” by withholding documents and misstating facts about the case.  Or consider the 2008 corruption prosecution of Sen. Ted Stevens before the same judge in the Flynn case, Emmet Sullivan, during which DOJ prosecutors systematically withheld explosive exculpatory evidence that would have thoroughly gutted their case against Stevens.  Besides dismissing the charges against Stevens, an incensed Sullivan commissioned a thorough investigation of the DOJ’s misconduct in the case that culminated in a 500-page report that documents, in mind-boggling detail, prosecutors’ serial misdeeds in their corrupt attack upon a sitting senator.

Again, defenders of the current system will say those particular examples are rare, which is true — but so are trials in our plea-driven federal system, in which just 2% of cases go to trial.  If every single case went to trial with defense counsel as tenacious and aggressive as Flynn’s new team, how many of those cases might blow up as spectacularly as the Flynn, Bundy, or Stevens cases?  And if every one of those cases got the same internal tire-kicking by the DOJ that Flynn’s finally received, how many of them would simply be dismissed outright, as the DOJ now seeks to do with Flynn?

There’s no reason the latter question has to remain hypothetical, and Congress should move swiftly to ensure that it does not.  The pathologies engendered by the DOJ’s overreliance on coercive plea bargaining are too numerous and too deeply ingrained in our system to address all at once.  But something Congress can do immediately is establish within the Department of Justice an Office of Plea Integrity that would be charged with doing on a full-time basis what Jeff Jensen was brought in to do in the Flynn case, namely, pop the hood and give the whole case a searching and perhaps even skeptical review before clearing it to proceed to a guilty plea.  With upwards of 80,000 federal criminal prosecutions each year, it probably isn’t feasible to review every case, but it should not be unduly difficult to develop a system for selecting a mix of random and specially designated cases, including ones involving prosecutions of particular public interest, such as the Flynn and Stevens cases, for review.

Other reforms Congress should consider in the longer term include a statutory cap on the notorious “trial penalty,” which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.

Again, those are policies Congress may consider in the fullness of time.  But the creation of a Plea Integrity Unit within the DOJ is an obvious and urgent response to a botched high-profile prosecution that has justifiably shaken people’s faith in the competence and the integrity of the federal criminal justice system.

I love the idea of a body committed to ensuring pleas have integrity, but I am not quite sure why Clark Neily would trust the DOJ fox to review critically its favorite fat hen in its prosecutorial henhouse.  As I see it, there needs to be a body, largely independent of prosecutors, that is charged with takes a close and skeptical look at individual pleas and our entire modern bargained system of justice.

In this area, I have long been a fan of Professor Laura Appleman's clever idea of a "plea jury" (as detailed in an article and book): "a lay panel of citizens [that] would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."  I do not think a "plea jury" would solve all or even most of the modern problems with modern plea practices, but it strike me as a good start.  Perhaps that case-specific innovation could be coupled with an new independent judicial-branch commission, one perhaps structurally modeled like the US Sentencing Commission, that would be tasked with gathering data and issuing guidelines on sound plea bargaining practices.

As Neily notes, more than nine of every ten convictions come from the plea process, and yet there are few rules and even less data to inform the discretion exercised by prosecutors as they pursue investigation and structure the terms of plea bargains.  Wherever located and however structured, an "Office of Plea Integrity" would not instantly improve our bargained systems of justice, but it strikes me a good place to start. 

May 15, 2020 at 03:18 PM | Permalink


God knows that there is a huge need for an Office of Plea Integrity. I have seen some very screwed up pleas. In one case, a North Carolina man (a Lumbee Indian) was induced to plead guilty to being a felon in possession of a firearm, a crime he was factually and legally innocent of under applicable law. When a person's felony conviction arises from a state felony charge, Federal gun laws look to th law of that state to determine whether the person is disqualified from possessing a firearm, so that he can be prosecuted under Federal criminal law. At the time, the law of North Carolina provided that 5 years after an inmate completed his sentence, including probation and parole, his gun rights were automatically restored by operation of law. For this defendant, he had completed his North Carolina felony sentence more than 6 years earlier, so his gun rights had automatically been restored by operation of law. He was entrapped by a Confidential Informant to taking an unloaded revolver,while walking down a sidewalk. HE had told the C.I. "No!" several times, but the C.I. continued following him and lowering the asking price for the pistol. After the final "No!", the C.I. gave him the pistol for no money. One block later, he was stopped by teh police, frisked and arrested for being a felon in possession of a handgun, which became a Federal gun charge under 922(g). His public defender told him that he was guilty and that he had to plead guilty, which he did. Later, I did the legal research and determined that under applicable North Carolina law, incorporated into the Federal gun laws, his gun rights had been restored by operation of law more than year before he was arrested. I drafted and he filed pro se a 2255 Motion, alleging ineffective assistance of counsel and actual innocence of the crime. When the inmate was transported from prison in West Virginia back to North Carolina for an evidentiary hearing on his 2255 Motion, he was threatened by the AUSAs and compelled to with draw his 2255 Motion, without a ruling on the merits. The AUSAs advised that if her pursued the 2255 Motion and won, they would then indict him for perjury during his guilty plea colloquy, where he swore under penalties of perjury (based upon bad legal advice) that he had committed the crime. THus, he withdrew his "dead bang winner" of a 2255 from consideration, and returned to prison in West Virginia, to complete his sentence for a cirnme he didn't commit.

Posted by: James Gormley | May 15, 2020 9:00:22 PM

Another bogus guilty plea I am familiar with involved a man who owned a legitimate chemical company business. DEA agents came to his office and asked for a list of his customers who had purchased any chemical on a list they gave him. These were meth precursor chemicals, among other uses. He asked the agents if they had a search warrant, and they responded, "No." He politely declined to provide them with the list of customers who had purchased those chemicals. HE told them to come back after they had obtained a search warrant. Two months later, this man found himself indicated for conspiracy to sell meth precursor chemicals and conspiracy to manufacture meth. The Government had had a Confidential Informant purchase some of the chemicals off their list from his business, but the man had never said anything to the owner about using the chemicals to make meth. The C.I. was cooperating with the Government and was prepared to testify that he had, in fact, discussed using the chemicals he had bought to make meth. Defense counsel persuaded the man that he could not win the case at trial, so he should plead guilty to minimize his time in prison. After the defendant owner was sentenced and incarcerated at an FCI, he sent off FOIA requests about the Government's C.I. in his case to the FBI and the DEA. The FOIA responses showed that the C.I. had been a paid DEA C.I. for almost 10 years, and was actually paid a salary to work as a C.I. Thus, the C.I. was effectively a Government Agent. These facts had never been disclosed to defense counsel under BRady v. Maryland before the defendant pleaded guilty. Under Federal criminal law, one cannot conspire just with a Government agent, because the law presumes that no Government agent would ever actually commit the crime discussed. Because the defendant-inmate's conspiracy charges had included only him and the C.I., there was not legally any conspiracy or crime for him to have pleaded guilty to. I drafted his 2255 Motion, which he signed pro se and filed. His Judge was angry and incredulous, and following an evidentiary hearing (circa 2002) vacated and set aside his guilty plea, and the Government dismissed the indictment, with the Judge's agreement. The DEA agents who concocted this scheme and failed to disclose the truth about their C.I. to the U.S. Attorney's Office were fired.

Posted by: James Gormley | May 16, 2020 11:30:19 AM

"that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt"

That's just false. Flynn was trying to withdraw his guilty plea because of blatant Brady violations by the Justice Dept, not because they exerted pressure. And the Justice Dept is now admitting that their their case was bogus as a matter of law--- mixed with the facts that have now come to light.

Am I wrong on that? --Eric Rasmusen, law-and-econ economics prof.

Posted by: Eric B Rasmusen | May 16, 2020 11:29:21 PM

Also, I'm frustrating by not finding any legal experts blogging on the odd development in the Flynn case, especially, the idea of holding a defendant in contempt for trying to withdraw his guilty plea. Please do comment. We need expert commentary. The call for amici is also interesting and unusual.

Posted by: Eric B Rasmusen | May 16, 2020 11:31:04 PM

Eric: I have not followed the Flynn case closely, nor have I read any of the filings, but I surmise that Flynn has been arguing that an array of government misbehavior should allow for his plea withdrawal: https://www.lawfareblog.com/flynn-moves-withdraw-guilty-plea

As for the idea of contempt here and other unusual rulings and discussion, I have chalked it all up to the distortions that can (and often do) happen in high-profile cases and that can take on extra-strange dimensions in high-profile political cases. Until Judge Sullivan rules, I am disinclined to opine on so much of the posturing by so many. That said, I would hope folks would not root for persons to be convicted or imprisoned simply to score political points, AND I am always troubled every time I see that, when subject to serious scrutiny, a lot of what parades as "justice" in the criminal justice system leaves a lot to be desired.

Posted by: Doug B. | May 17, 2020 3:47:31 PM

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