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July 7, 2021

ACLU sues Maricopa County prosecutors over expressly threatening "substantially harsher" plea offers for those who exercise court rights

As detailed in this ACLU press release, "the American Civil Liberties Union and the ACLU of Arizona filed a federal class action lawsuit challenging the Maricopa County Attorney’s Office (MCAO) policy of making plea offers 'substantially harsher' if people assert their rights to a preliminary hearing or a trial." Here is more about this notable lawsuit from the press release:

This "retaliation policy" coerces thousands of guilty pleas per year and violates the Constitution. Moreover, the retaliation policy applies regardless of the facts of any case, or even if the person might be innocent. Prosecutors also refuse to disclose any information beyond police reports — even if they have it — unless people give up their rights. In emails to public defenders, Maricopa County prosecutors openly acknowledge that one purpose of the policy is to avoid the work of reviewing evidence and preparing for trial.

MCAO enforces its retaliatory plea policy in the Early Disposition Courts (EDCs).  These EDCs were initially created to quickly move cases involving minor offenses or drug possession through the system, with the stated goal of helping people in need of drug treatment and other services avoid convictions.  It is during the EDC process that prosecutors threaten people with retaliation for exercising their rights and present people with a devastating choice — either waive your right to a probable cause hearing and accept the first guilty plea, all without access to the evidence against you, or MCAO will make any later plea “substantially harsher.”...

Plaintiffs include a 34-year-old man who felt threatened by MCAO’s retaliation policy and felt he had no choice but to waive his right to a preliminary hearing in order to get more discovery.  Another Plaintiff is a 61-year-old man with a substance use disorder who was charged with selling $20 worth of drugs.  Despite EDC’s stated purpose — to divert drug offenders away from incarceration and toward treatment — MCAO prosecutors are seeking to send him to prison for almost 10 years.  And the offer will get “substantially harsher” if he affirms his rights.  The complaint also details the story of a man who was actually innocent of his charges, but MCAO tried to pressure him into a guilty plea anyway.

This lawsuit, which seeks class certification and injunctive relief, is captioned Luckey v. Adel and the complaint can be found at this link.

July 7, 2021 at 12:42 PM | Permalink


If these Arizona defendants prevail in this class action lawsuit, might it mean that the Federal Rules that provide for shorter sentences for those who promptly plead guilty and save the Government the trouble of preparing for trial are also unConstitutional?

Posted by: Jim Gormley | Jul 7, 2021 11:56:32 PM

The argument that the County Attorney is likely to make, of course, is that she and her office have no Constitutional requirement to make any plea bargain offers at all, so they can exercise their plea bargaining discretion any way they want to. But I think Due Process of Law and the Sixth Amendment right to meaningfully effective assistance of counsel require more, particularly when the initial plea offer requires defendants to waive certain Constitutional rights, including the right to a preliminary hearing and to receive discovery of the prosecutor's exculpatory evidence, per Brady v. Maryland. The way this County Attorney operates is just "assembly line justice", without regard to the defendant's actual culpability and guilt. This just isn't the way we administer justice in America. These prosecutorial practices fly in the face of the classic language about the prosecutorial role that the U.S. Supreme Court wrote in Berger v. United States, 295 U.S. 78, 88 (1935) ["It is the prosecutor's duty to avoid using improper methods designed to produce a wrongful conviction as much as it is to use every legitimate means to bring about a just one."].

Posted by: Jim Gormley | Jul 8, 2021 8:11:44 AM

I am guessing the question is how express the threat is and what the threat is. It is probably acceptable for the State to say that this offer is good for this day only, and that the State will be free to make a different offer later. But there is that vague line in cases like Goodwin about how express the threat can be before it is retaliation for the exercise of rights rather than the legitimate give and take of negotiation.

U.S. Supreme Court has said no right to discovery outside of Brady and Brady does not apply to guilty pleas. Defense counsel obviously has ethical obligation during plea bargaining to tell defendant that they have not yet received the discovery and thus are unable to give any advice about the strength of the charges. But decision to plead guilty belongs to client. My read of Hill and its progeny is that the right to effective counsel does not bar an early plea even if that limits what counsel can do.

Posted by: tmm | Jul 8, 2021 10:40:09 AM

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