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August 17, 2020

Can and should judges demand prosecutors provide written explanations for dismissals and plea deals?

The question in this post and broader concerns about judicial review of prosecutorial discretion seems to be arising more and more in a variety of contexts. The election of many so-called progressive prosecutors seems in particular to be lead some not-so-progressive judges to be more eager to review and regulate prosecutorial action, and this AP article notes how this debate might come before the Virginia Supreme Court:

A northern Virginia prosecutor who says her county’s judges are infringing on her discretion to dismiss charges and enter plea bargains is asking the state Supreme Court to intervene on her behalf.  Arlington County Commonwealth’s Attorney Parisa Dehghani-Tafti filed a petition [available here] Friday asking the court for a relief from a policy imposed by the county’s four Circuit Court judges.

In March, two months after Dehghani-Tafti took office, the judges required prosecutors to file a written brief explaining themselves any time they decide to drop charges or enter a plea bargain. Dehghani-Tafti was one among a cadre of prosecutors in northern Virginia and across the nation to win office on a reform agenda, promising not to prosecute lower-level drug offenses.

She said that the order is not only time-consuming, but potentially damaging in cases where the reasons for dropping a case should remain private, like protecting a broader investigation or in cases of domestic violence where a victim declines to cooperate. “It is not wise for us to be putting in all those details, and the court should know that,” she said....

The issue is playing out nationally in different ways.  In Maryland, Republican Gov. Larry Hogan has crossed swords with Baltimore prosecutor Marilyn Mosby after Hogan tried to divert more resources to the state attorney general’s office to prosecute cases in the city. And in Missouri, the legislature is considering a bill filed during an ongoing special session sought by the state’s Republican governor that would give the state’s attorney general overlapping jurisdiction to prosecute cases amid complaints that St. Louis Circuit Attorney Kimberly M. Gardner is too lenient in bringing charges.

Both Mosby and Gardner are among 60 current and former prosecutors who have signed on to a friend-of-the-court brief supporting Dehghani-Tafti’s petition in Virginia.  Miriam Krinsky, executive director of Fair and Just Prosecution, the organization that submitted the friend-of-the-court brief [available here], said that while judges have their own discretion to question on a case-by-case basis a prosecutor’s motion to dismiss a particular case, she said that issuing a blanket policy requiring written justification for every decision is excessive.

“In the ’80s and ’90s prosecutors used their discretion to ramp up mass incarceration, and judges never second-guessed or interfered with that,” she said. “Now we have this sweeping order in all cases in Arlington County where an elected commonwealth’s attorney is wanting to do exactly what voters elected her to do.” In Arlington, Dehghani-Tafti said that in previous years, 75 percent of dismissed cases were handled on oral motions only, often taking only a minute or two.

She acknowledged that prosecutorial discretion cuts both ways, saying a rural prosecutor in a jurisdiction that has declared itself a Second Amendment sanctuary also enjoys the discretion to decline prosecution on firearms charges.  She said, though, that her efforts to pass on low-level drug cases are distinguishable on policy grounds, because she is moving in the same direction as the legislature, and that her approach to drug prosecutions is evidence-based. 

Because I have long been troubled that prosecutorial actions and discretion operates mostly in the dark without being subject to any clear legal standards or transparency or review, I generally like the notion of forcing prosecutors to explain and justify their actions and subjecting these actions to some form of judicial review.  But especially given our society's core commitment to freedoms and limited government, I strongly believe any obligation of explanation should apply primarily when prosecutors are seeking to use coercive government powers to deny freedoms, not when they are seeking to forgo the use of government powers and will enhance freedoms.

August 17, 2020 at 10:20 AM | Permalink


The problem with making prosecutors explain things -- whether at the time of filing, a plea bargain, or dismissal -- is that such decisions typically involve work product (the mental impressions of the lead attorney on the case).

Typically, when a non-attorney actor in the government makes a decision, that is a "final" decision. There is no court action that the government needs to take. It has either granted a permit or denied a permit. It has either found somebody eligible for benefits or found them ineligible. And it makes sense to require the government to explain its reasoning; so that the affected parties can determine if they have a basis for challenging that decision.

On the other hand, when an enforcement agency decides to take legal action, the initial pleadings are not a final decision. They are a temporary decision that can change as the litigation advances. And it is harder to justify a change in a decision when I have had to put the reasons behind my initial decision on the record. Additionally, for prosecutors, it is not unusual for the attorney who made the initial decision to no longer have the case (either through normal reassignment practices or the attorney leaving the office). The new attorney may (in some cases, justifiably so) have a different view of the evidence.

p.s. You may be interested in a case that the Missouri Supreme Court is hearing on September 2 -- State ex rel. Becker v. Wood. It is a writ case in which a newly-elected prosecutor is challenging the refusal of the trial judge to quash a subpoena compelling the prosecutor to testify at a hearing on a motion to dismiss the notice of aggravating circumstances filed in a potential death penalty cases on grounds of vindictive prosecution.

Posted by: tmm | Aug 17, 2020 10:56:29 AM

Interesting points, tmm, though the fact that a written record makes is harder to change course could be a argument in favor of requiring a written record.

Posted by: Doug B. | Aug 17, 2020 4:13:15 PM

I think that judges have the authority demand explanations for plea deals. A district court judge is under no obligation to accept a defendant's bargained-for plea of guilty. See North Carolina v. Alford, 400 U.S. 25, 38 n. 11 (1970). If the judge is permitted to refuse to accept the defendant's guilty plea, then it seems to me that the judge should be able to say "I'm not accepting the plea until I get a satisfactory explanation for the plea deal."

Posted by: mbc | Aug 29, 2020 6:11:59 PM

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