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May 9, 2024
Should prosecutors be seeking waivers of all Fourth Amendment rights "for as long as 20 years" in plea deals?
The question in the title of this post is prompted by this notable new Bolts article wih this full headline: "'An Impossible Choice': Virginians Asked to Waive Constitutional Rights to Get a Plea Deal; Governor Glenn Youngkin vetoed a bill that would have barred prosecutors from making defendants waive protections against unreasonable police searches as a condition of pleas." Here are excerpts, with a little emphasis added in spots:
For Virginians facing criminal convictions with plea deals on the table, the unalienable constitutional rights they typically enjoy suddenly become negotiable. Under state law, prosecutors can ask people to sign away their Fourth Amendment protections against unreasonable search and seizure in exchange for reduced charges or sentencing. Black Virginians are much more likely than their white counterparts to get plea deals that waive these rights, which can open people up to random and invasive police searches long after they’ve resolved their cases.
In the capital city of Richmond, 96 percent of people who agreed to waive their Fourth Amendment rights in 2020 were people of color, data obtained by Bolts show. The city’s population was 45 percent Black and eight percent Hispanic. That same year in Lynchburg, Virginia, the second largest city, Black people accounted for 78 percent of all plea waivers signed, while they only made up 28 percent of the population.
The practice, known as a Fourth Amendment waiver, permits police to search a person, their home, or vehicle for a specified number of years after a conviction, even if they’ve completed their sentence of incarceration or parole, and regardless of proof they committed a crime. People living under the waiver cannot challenge the legality of anything police find during a search. Lengths of the waivers can stretch long beyond probationary periods — prosecutors have ordered some people to waive their Fourth Amendment rights for as long as 20 years, according to data obtained by Virginia advocacy group Justice Forward through public records requests and shared with Bolts.
Prosecutors say the waivers improve public safety. Colette McEachin, the commonwealth attorney for the city of Richmond since 2019, told Bolts the waivers are “very effective” in resolving cases and put people “on notice” once they’re released from incarceration. She also said the waivers prevent people from reacting violently to otherwise unlawful police searches. “They are aware that they’ve given up that right, because they had to sign an agreement that says that. Hopefully there will not be a dangerous situation where they are upset that law enforcement is searching them.”...
Across the country, roughly 95 percent of cases in state courts are resolved through plea bargains. Prosecutors in some Virginia counties make the waiver a mandatory condition of a plea bargain, and people who choose not to accept them face the threat of a longer sentence after a trial.... Prosecutors can ask people to waive protections such as the right to a jury trial, the right to see evidence against them, or the right to erase their record later as a condition of a plea deal. Fourth Amendment waivers also happen across the U.S., in states including California, Georgia, and Idaho.
Virginia was slated to abolish the practice earlier this year, when legislators passed a bill along party lines that would have prohibited plea deals and court orders that “waive, release, or extinguish” defendants’ Fourth Amendment rights. State Senator Saddam Azlan Salim, a Democrat who has backed criminal justice reform legislation in the past, was the sponsor. Supporters of the legislation cited concerns about prosecutors disproportionately leveraging the waivers against people of color. Governor Glenn Youngkin, however, killed the legislation in March, vetoing it along with 21 other criminal justice-related bills, stating they “undermine public safety.”...
Typically, police must have a reasonable suspicion that someone committed a crime to stop and search them. But once a person signs away their Fourth Amendment rights, police are allowed to stop them at random. There’s no way to track the full scope of how often police stop people with Fourth Amendment waivers because the searches typically aren’t logged unless police find something. While Virginians on supervised release already agree to allow probation officers to randomly search their homes and vehicles, the Fourth Amendment waivers take these searches to the extreme; the search privileges outlined under the waivers go beyond what probation officers may search....
Ashley Shapiro, a public defender in Richmond who says her clients are often made to choose between accepting a waiver or a tougher sentence, argues that the waivers have provided a shield for police to illegally stop people. “Usually it’s that they stop people on the street for no reason and then get lucky that they happen to have a Fourth Amendment waiver,” she said.
The waivers are often wide-reaching. A copy of a Richmond plea agreement including a waiver states a person waiving their rights “shall submit to search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause for a period of 3 years from the date of his release from active incarceration.”...
McEachin, the Richmond commonwealth attorney, said she looks at the facts of each case before deciding whether to ask for a waiver as part of a plea deal. In drug and gun cases, she said, asking a person to give up their Fourth Amendment protections is particularly important. “Those are the individuals who we want to be able to search in the future, if you’ve developed information that they have resumed criminal behavior,” she said.
When asked about the data showing that roughly 96 out of every 100 people with waivers in Richmond are people of color, McEachin insisted her office’s use of them is not racially discriminatory. “I think that probably most of the people who have been charged are African American, or brown or Latino,” she conceded, but continued, “I think that everybody who’s an adult always has difficult choices, and this probably is a difficult choice. But it is a difficult choice that that person has arrived at through their own actions.”
Use of the waivers often comes down to the discretion of individual prosecutors, and it varies across Virginia. Vikram Kapil, the head public defender for the southern counties of Halifax, Mecklenburg, and Lunenburg, said that only prosecutors in Lunenburg County try to include them in plea deals, especially for drug offenses. “We’re pushing back on it,” he said. “We generally say, ‘No, you shouldn’t do this.’ It’s tough telling someone who’s sitting in jail who isn’t able to go see their family and see their loved ones.”...
There was little opposition to the bill to abolish the waivers. The powerful Virginia Association of Commonwealth’s Attorneys was the only organization to come out against the legislation. “Fourth amendment waivers are a tool prosecutors may use for a few reasons, including for the benefit of the defendant and public safety,” Amanda Howie, administrator of the association, wrote in an email to Bolts.
Regularly readers likely know I am not a big fan of prosecutors using plea deals to secure broad waivers of future rights, though I usually focus my ire on federal efforts to demand waivers of rights to future appeals or other means to seek to block individuals' rights to access court reviews of prison sentences. But broad waivers concerning all future Fourth Amendment rights, especially when they last beyond the terms of any formal sentence, strike me as the first step toward even more extreme efforts by government agents to insulate government power from any real accountability or scrutiny. I wonder if prosecutors in Virgninia or elsewhere might soon just ask for blanket waivers of all constitutional and statutory rights. Maybe we could just call them somethng like serfdom waivers, although I believe even serfs had some protected rights.
May 9, 2024 at 04:30 PM | Permalink
Comments
This may get federalist’s dander up: https://www.declassified.live/p/the-dojs-doctored-crime-scene-photo
Posted by: TarlsQtr | May 9, 2024 5:08:31 PM
This is a step too far even for me.
Posted by: TarlsQtr | May 9, 2024 5:15:46 PM
Ha ha. Yes, actually it does. First of all, it impacts the defendant's right to a fair trial. Second, it's obvious evidence tampering. Judge Cannon should hold those responsible in criminal contempt and lock them up.
As for the waiver of rights, this is fraught with problems. First of all, I don't think a pre-waiver works. Second, once the time has been served etc. etc., what's the remedy? Specific performance-good luck with that. The other issue--ok, guys, let's enforce the agreement as written--hmmm, does it contain a consent to be detained, to be protectively handcuffed, to be pushed up against the wall roughly?
Just thinking out loud, but I don't think these pre-waivers are enforceable.
Posted by: federalist | May 9, 2024 6:11:59 PM
federalist: I am not sure I get your "remedy" point. These waivers seemingly allow police to storm the house or car or person at any time for any reason with no limits becuase the person has signed a blanket waiver of their 4A rights. That would include seizures (even rough seizures) of the person, too, I would think. And, thereafter, no applicable execusionary rule or possible tort/1983 suit for violation of 4A rights because the have all been waived.
As for your "pre-waiver" statement, I am not exactly sure what you mean. But I think sentencing appeal waivers are comparably a "pre-waiver" in that defendants are forced to waive any chance to appeal any and all sentencing errors BEFORE the sentencing actually takes place.
Posted by: Doug B | May 9, 2024 8:20:40 PM
Maybe it's because my coffee has yet to reach my brain, but on first glance I thought this was a waiver referring to any claim to past 4A violations, which seems like not a big deal and redundant. But a *prospective* 4A waiver is astonishing to me. To be sure, people who are on active criminal supervision enjoy much lower 4A protections, but applying that same standard (or even lesser? I know most places require at least RAS for a supervision search, which these waivers seem to abandon) to people independent of their supervision status is just wild.
Posted by: Guy Hamilton-Smith | May 10, 2024 9:36:16 AM
I think a waiver while on probation makes sense. I do not like the idea of a waiver that continues after probation is complete.
As for a prison sentence, from a practical standpoint, I think it would make sense to have a waiver for up to perhaps two years after the sentence is complete. I think society has a legitimate interest in ensuring that a released prisoner does not immediately return to crime. Whether that would or would not pass Constitutional muster I have no idea.
Regardless of whether or not a 1-2 year waiver might be possible, I definitely agree that a decades-long waiver is beyond the pale.
Posted by: William Jockusch | May 10, 2024 9:52:17 AM
Though I am not a Fourth Amendment expert, my sense is that probationers and even prisoners retain some constitutional rights/protections from unreasonable uses of force/seizures. For example, imagine in a probationer is smoking weed in a park when his probation officer drives up; the probationer runs, the officer takes out his gun and say "stop, come back here." Suppose the probationer stops, turns around, starts walking back and is apologizing for running, and then the officer just decides to shoot the probationer in the leg/foot to teach him a lesson and to make sure he never runs again. Or imagine the officer handcuffs the probationer to a park bench and just leaves him there for 48 hours to "teach him a lesson." Or takes his phone and his car and uses them for fun for the next week. And so on...
A shooting/kidnapping/stealing from someone not under CJ control would surely provide the basis for a 1983 suit claiming a violation of the 4th A right to not be subject to an unreasonable seizures. And even with diminished rights, I think a probationer could also pursue a claim on these kinds of (extreme) facts. But someone who has pre-waived all 4th A right arguably has no traditional protection against these kind of excessive use of force/seizures. (On extreme facts, I could see courts allowing 5th A or other constitutional claims to be made instead of a traditional 4th A claim. But then what's to preven the next plea deals to include waivers of those claims as well?)
Posted by: Doug B | May 10, 2024 10:28:48 AM
Doug, obviously, the enforceability of the waiver is determined by contract law, as is its contours. I would argue that the contract would (a) be construed against drafter and (b) be subject to all of the contractual doctrines. Also, what is the remedy for the cops if the guy repudiates the agreement? Would they enforce over that? Could they? Plus, is he waiving the right to be free from unlawful arrest? When you ain't free to go, you're arrested.
Posted by: federalist | May 10, 2024 12:32:54 PM
Good point, federalist.
As TarlsQtr pointed out in another post, "The prosecutor has no power."
So at least there is no risk of an appeal waiver being construed as a contract of adhesion LOL
Speaking of adhesion, President Trump is going to superglue the asses of all the criminal scum to their prison cells! MAGA
Posted by: MAGA 2024 | May 10, 2024 12:57:22 PM
federalist, federal defendants who sign sentencing appeal waivers often want to "repudiate" the waiver after a judge makes (alleged) sentencing errors to impose an (alleged) illegally long sentence. If you believe a sentencing appeal waiver cannot or ought not be enforced if/when a defendant wants to repudiate that (before sentencing) waiver after he sees what actually happens at sentencing, then we may have a quite similar view of what should be the enforeability problems of what I think you are calling "pre-waivers." (In sentencing case, of course, years of unlawful federal prison time, not an "unlawful arrest," may hang in the balance.)
Problematically, federal circuit courts have consistently upheld sentencing appeal (pre)waivers. and so prosecutors could seemingly feel quite confident they can get just about anything "pre-waived" in a plea deal and have that waiver later enforced by courts. And, based on this press report, in VA that seems to include categorical submission to law enforcement for years and years with no legal limits on "search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause."
In sentencing appeal waiver settings, we sometimes see courts read in limits in extreme cases --- eg, claims of prosecutorial miscoduct or ineffective assistance in the plea process; sentences imposed beyond statutory max, etc. But the very waiver is significant and pernicious because courts are generally keen to enforce it absent extreme facts (eg, I have turned down numerous requests to pursue certain notable sentencing appeals because there was a broad waiver in the plea deal). If I was a lawyer advising police in VA, I'd certainly reference the sentencing appeal waiver cases to suggest law enforcement will likely be able to get away with whatever they want without concern for any 4A issues if a person has signed one of these waivers.
Posted by: Doug B | May 10, 2024 1:59:56 PM
Doug, guy is searched--would be unlawful but for the waiver (and I am saying he can repudiate it by the way--for example is the local jurisdiction a third-party beneficiary), but all he has don't is waive his right to be searched, not falsely arrested. That's different from an appeal waiver.
Posted by: federalist | May 10, 2024 2:43:46 PM
Federalist, the waiver language quoted in this article says guy is allowing "seizure of his person ... at any time of day or night by any law enforcement officer with or without a ... warrant of arrest or reasonable cause." That seems to allow guy being seized (arrested) at any time by any cops without any cause. So I do not understand what you are saying he has not waived. People are, through a provision VA prosecutors insert into plea deals, seemingly waiving ALL 4A protections and so allowing unreasonable seizures.
I hope courts will not enforce this kind of waiver, but they seem quite conceptually comparable to sentencing appeal waivers that have been widely enforced. I am not understanding what you are asserting is materially different. There can be compounded legal errors in sentencing (eg, mulitple guideline calculation mistakes, multiple factual errors about loss/drug quantities, etc), and some waivers are drafted more narrowly in some settings. But blanket sentencing appeal waivers and blanket 4A rights waivers seem on par in many ways.
Perhaps you can explain why one troubles you and the other doesn't, federalist? It seems this form of broad 4A waiver in a plea deal bothers you more, but why?
Posted by: Doug B | May 10, 2024 2:55:16 PM
Doug, any time someone is pulled over, they are seized--I wouldn't say that it's a consent to full-blown arrest. This would be construed against drafter. Second, they can withdraw consent at any time (I don't think the contract overrides that.)
I never ever have said that I am not troubled by appeal waivers. I think that they are more than ok in slam dunk cases etc. Where it gets tricky is where the case is weak, a stretch etc. Courts should supervise etc. etc.
Posted by: federalist | May 13, 2024 11:04:34 AM
federalist, this waiver language is very sweeping and certainly suggests to me a blanket consent to a blanket full-blown right to arrest (or why else reference "without a warrant of arrest"). And if this waiver/consent can be withdrawn anytime, why are defense attorneys not formalizing such waivers after the defendant gets the benefit of the plea deal. Court have not interpretted blanket sentencing appeal waivers as subject to ready withdrawal, and I doubt they will take such a view as to blanket 4th Amendment waivers.
I am glad you think "courts should supervise," whatever that means. I am sure Virgina prosecutors will agree to similar supervision what they seek 1A and 2A and 4A and 5A and 6A and 8A wivers in the future. Got any other rights, I am sure they could seek waiver of them, too. That is the path that Bill Otis and his invention of "pre-waivers" gave us, and I am sure prosecutors are convinced there are good policy reasons for them all.
Posted by: Doug B | May 13, 2024 1:42:42 PM
I'm not trying to start a fight here and am disinclined to engage in one. I do have a question. Doesn't the typical term of probation that a defendant accepts as part of a plea bargain contain a term under which he consents to a search of his person or home at any time by the police or a P.O. I kind of think so, but I don't know.
Posted by: Bill Otis | May 14, 2024 12:03:41 AM
Doug --
By far the most important and most hallowed right in American criminal law is the right to a speedy and public trial by a jury of your peers -- but it is precisely that right that the standard plea bargain waives, and has waived for decades before the waiver of the (non-constitutional) right of appeal. So I guess the Supreme Court (and the executive and legislative branches) for all these many decades got it wrong and, to be true to America's preeminent crown of Freedom from Prosecutorial Oppression, we must now disallow trial waivers (i.e., plea bargains).
Tell that one to the defense bar, which literally lives off plea bargains. You'll be able to hear the howling on Pluto.
Posted by: Bill Otis | May 14, 2024 12:12:05 AM
Bill,
Sure, the defense bar is whiny and pathetic, but I figure you can hear the howling of the baby killers over Dobbs v. Jackson Women's Health all the way out at Voyager 1 LOL
Brady v U.S. is only 3 years older than Roe v Wade. There are good precedents and bad ones.
I trust President Trump's appointees to continue making correct decisions. But one of them could wobble, it's true. We just need to get him 3 more. Or 6. MAGA
Posted by: MAGA 2024 | May 14, 2024 8:18:37 AM
On your probation question, Bill, various SCOTUS cases --- eg, United States v. Knights, 534 U.S. 112 (2001); Griffin v. Wisconsin (1987) --- suggest there is wide variation on conditions of probation. In some places, reasonable suspicion is needed for searches (which is what was uphled in Griffin and Knights), whereas other places only limit searches based on vague reasonableness standards. These Virginia waivers appear to be so much broader because they cover all manner of seizures and all manner of searches for any or no reason and for periods well beyond any court-ordered supervision.
On your trial waiver point, Bll, we have been through this before and you often fail to respond to the follow-up questions. Let's begin with the fact that few dispute the authority to knowingly and voluntarily waive 4A rights in some ways and in some settings. At issue is whether, for structural reasons, certain types of plea-induced waviers are problematic in their nature and should be limited (I would say "unenforceable"). Since the trial right is largely about protecting an accused's right to put the government to its proof of a crime and the defendant can know whether he committed this crime, we are comfortable allowing this right to be waived.
But here come the follow-up questions I hope you might address, Bill. There are surely some structural limits on the waiver of trial rights, no? Could a plea deal include a defendant waiving the right to a unanimous fair cross-section 12-member jury and agree to be tried by 18 women for which only 6 were needed to convict? Could a plea deal include a defendant waiving the right to proof BRD and allow conviction on the basis of just reasonable suspicion? Or, to parallel what afoot in Virginia, could a plea deal include a defendant agreeing to waive the right to a jury trial (and all other criminal procedure rights) for the rest of his life regardless of the nature of any crimes he's charged with in the future?
I would appreciate it, Bill, if you could speak to these hypos. Perhaps you believe there is no aspect of the Constitution or statutory rights not subject to prosecutorial negotiation and deal-making without rules or regulations. But, I do not believe the Framers created so many checks and balances on state power that can all be wiped away simply based on how certain prosecutors might invent and demand new waiver terms in their plea bargaining bazaar. But I recognize these kinds of prosecutorial efforts to extinguish rights will continue to grow unless and until courts and prosecutors acknowledge there must be some limits. So I ask you, Bill, are there any limits?
Posted by: Doug B | May 14, 2024 9:53:30 AM
MAGA 2024 --
"Sure, the defense bar is whiny and pathetic..."
Glad to see the admission. Any suggestions to get it to buck it up?
"...but I figure you can hear the howling of the baby killers over Dobbs v. Jackson Women's Health all the way out at Voyager 1."
Why would they be howling? There have been more abortions after Dobbs than before. Check it out (it was in the NYT).
"I trust President Trump's appointees to continue making correct decisions. But one of them could wobble, it's true. We just need to get him 3 more. Or 6."
Get me six Clarence Thomas Clones and we're on.
"There are good precedents and bad ones."
I think you'll get wide agreement on that one. But do you know any serious person who is calling to reverse the precedents that allow plea bargaining?
Posted by: Bill Otis | May 14, 2024 10:27:50 AM
Doug --
Thanks for the info on probation. Roughly what I remembered.
AS to further discussion of appeal waivers, I respectfully demur. I've been talking about this for more than 30 years, and I did my talking in court where it counts, not on the Internet. It started off with the unanimous Wiggins case, here: https://m.openjurist.org/905/f2d/51/united-states-v-wiggins. The court explained it all as well as I could. And yes, we can all go off into wild hypotheticals ("the defendant hereby waives her right to interfere with her children being thrown off the cliff"), and while that's nifty for law school, the real world isn't like that. There is a reason the appeal waiver has survived over three decades, has been accepted in every circuit, and has been used by every Attorney General from Janet Reno to Merrick Garland. The reason is not that everyone is a schmuck looking to screw the poor defendant. The reason is that the waiver is sound law, preserved in the face of the objections you make and many others.
Posted by: Bill Otis | May 14, 2024 11:06:53 AM
Bill, I did not ask you about appeal waivers, but followed up (again) your cite to waiver of trial rights as the foundation for justifying all sorts of other waivers. The broad 4A provisions being used by prosecutors in Virginia discussed in the main post are not a "wild hypotheticals," they are real-world examples of prosecutors continuing to be eager to get individuals to forego adfitional (future) rights in the plea process.
I get that you are proud of having pursued your power and policy interests via these waivers as a prosecutor, and I suspect other prosecutors also are proud about the broad waivers invent for plea agreements. But I think there have to be some limits on this prosecutorial power, and the real-world Virgnia experience makes it critical to sort out what these might be. That you now "demur" highlights your eagerness to (over-)promote prosecutorial powers without any discussion of its limits. That's why I consider you as a big government guy, as you are quick to champion government power without mention of its limits.
Posted by: Doug B | May 14, 2024 11:44:09 AM
I'm sure I can speak for Bill when I say that limitation of government power is a principle we must champion without hesitation when Democrats and other liberals seize control of that power. I would say "unwarrantedly", but doesn't that go without saying? Just look at the insanity of the CFPB. Even without Elizabeth Warren running it it was a disaster for free enterprise. MAGA
Posted by: MAGA 2024 | May 14, 2024 1:21:33 PM
Doug --
"I get that you are proud of having pursued your power and policy interests via these waivers as a prosecutor, and I suspect other prosecutors also are proud about the broad waivers invent for plea agreements."
Me and Janet Reno and Loretta Lynch and Eric Holder and Merrick Garland. Lotta really bad people there! All power mad, no?
"But I think there have to be some limits on this prosecutorial power, and the real-world Virginia experience makes it critical to sort out what these might be."
You've been more than eager to put limits, at the very least, on the waiver way, way before the Virginia provision showed up. But if you want to explore those limits in a forum that counts, have at it! The Virginia courts are not shy (or so I hear, I've never been in one). Go do litigation like I did! It's kinda fun.
"That you now "demur" highlights your eagerness to (over-)promote prosecutorial powers without any discussion of its limits."
And there are those who want to discuss the power of criminals to do their thing without discussing limits (second and third and fourth, etcetera, chances dontcha know).
"That's why I consider you as a big government guy, as you are quick to champion government power without mention of its limits."
Ummmmmmmmm, now let's see. One of us gets a big government check and one of us gets a tiny speaking fee. Can you guess which is which?
Posted by: Bill Otis | May 14, 2024 3:24:19 PM
Bill, I am eager here to explore the limits of broad plea agreement waivers of future rights with the inventor of the sentencing appeal waiver. As we have discussed before, the origins of your invention and the push-back you may or may not have received from DOJ leadership at the time is entirely hidden, so I am left in this forum to just ask you about whether you think your invention has any limits. You do not want to discuss any limits on this form of prosecutorial power, which is your right. It is also telling.
Posted by: Doug B | May 14, 2024 4:36:43 PM
Bill:
"Glad to see the admission."
Not my circus, not my monkeys!
"Any suggestions to get it to buck it up?"
Hm. Abolish the criminal defense bar?
"But do you know any serious person who is calling to reverse the precedents that allow plea bargaining?"
Well, by definition liberals aren't serious (except about doing evil), but I guess you might have the occasional conservative prosecutor who gets voted out of office due to election fraud, and wants to trash his successor's conviction rate.
Don't hate the playa, hate the game I know federalist knows what Im sayin LOL
Posted by: MAGA 2024 | May 14, 2024 4:57:53 PM
MAGA 2024 --
OK, so you CAN'T name any serious person who is calling to reverse the precedents that allow plea bargaining.
Good, me neither. BTW, do you want to reverse them?
"Don't hate the playa, hate the game I know federalist knows what Im sayin"
Glad someone does.
Posted by: Bill Otis | May 14, 2024 11:40:17 PM
Well Bill you made me do my own research LOL
I see that Reason Magazine, sometimes a good source of some really solid policy analysis (just not on drugs) published a piece by Desmond Mantle a coupla years ago, "Fixing the plea bargaining process is an essential criminal justice reform". It says in part (LONG ASS QUOTE HERE)
"Another possible criminal justice reform, though it would involve a lot of significant tradeoffs, is the complete abolition of plea bargaining. From 1969 to 1973, the Philadelphia District Attorney’s office pioneered a policy of complete abolition of plea bargains. The results were mixed. Instead of clogging courts as some legal commentators had predicted, the reform caused Philadelphia’s prosecutors and defense attorneys to bargain over whether the defendant would elect a jury trial or a bench trial. The reform thus preserved the presumption of innocence to a greater degree than traditional plea bargaining, but it nevertheless maintained the possibility of effective coercion into waiving one’s right to a jury trial. The experiment exposed what seems obvious—plea bargaining can be a very valuable justice tool, but it is also easily abused. The trick is to establish the right framework and incentives to achieve the benefits and reduce the harms.
In another reform, in 1975, the attorney general of Alaska prohibited plea bargaining, but the Alaska Judicial Council found that in the two years following this decision, guilty pleas had only decreased from 94 percent of cases to 92 percent. This evidence also weighs against the idea that ending plea bargaining would clog the courts, but it raises concerns that other methods of prosecutorial coercion or excessive sentencing could have been at work in inducing so many guilty pleas, meaning that plea bargaining reform would need to be tackled alongside bail reform, sentencing reform, and improvements to the public defender system.
Abolition of plea bargaining would also leave defendants without a way to trade testimony for reduced sentences—something that would be good from the standpoint of improving the reliability of co-conspirator testimony but bad from the standpoint of forcing some, especially those convicted of some nonviolent offenses, to serve full sentences that may be inappropriately long." (END QUOTE)
That sounds pretty measured to me. I wonder how sound those examples are since it seems obvious to me that abolishing plea bargaining would lead to a total collapse of the conviction rate, and of guilty people being punished in general. (Sell your shares in GEO Group LOL) But Reason is usually pretty sound like I said. Except when it comes to drug legalization. They definitely get high on their own supply haha
Maybe this Desmond Mantle guy ISN'T serious. Under his byline it says "Intern" LOL
Also apparently in 1978 some law profs named Parnas and Atkins published a paper in the Criminal Law Bulletin (Im not familiar with this journal). Only the abstract is available, but it looks like they cite the same examples as Mantle. Since Mantle wrote 42 years later, maybe this was his only source. Just like an intern hahah
Parnas and Atkins cite one example that mantle doesn't: Maricopa County, Arizona. I'm amazed!
My money is that Maricopa County's little experiment with abolishing plea bargaining produced a backlash in the decent folk of the community and led to legendary hard-ass Joe Arpaio's 24 years as sherriff. I'm betting you agree.
Come to think of it, if abolishing plea bargianing in controlled locations leads causes patriotic and heroic men like Arpaio to rise and ENFORCE THE LAW, it might be something to encourage in places where we have problems with a soft-shelled sherriff or a "progressive prosecutor". A coupla years of extra chaos in a place that's already a sithole but on the other end, a quarter century of good conservative government.
Might be worth it. Sometimes you gotta be tactical. Now quit making me type so much, do you think I'm a lawyer or something? LOL MAGA
Posted by: MAGA 2024 | May 15, 2024 10:35:35 AM
MAGA --
Thank you for making an actual argument about criminal procedure rather than heading off (again) about DJT. I'm quite sincere about that.
As to Reason: Yes, in pushing for complete legalization of drugs including fentanyl and meth, they kind of out themselves as nuts. So while they do every now and again have some worthwhile stuff, they have a, ummmmmmmmmmmm, problem.
As to the idea of abolishing plea bargaining: Reason tells us about two discrete jurisdictions that tried it 50 years ago or thereabouts and promptly canned the idea. No one else seems to have wanted to try it for the last five decades. I rest my case.
With one sidenote, however: I personally have some heartburn with the practice, for one (among many) reasons that it lets criminals off with a fraction of the sentence they actually earned. It also abets laziness in judges, prosecutors and defense lawyers because it's a lot less work than a trial. But it's a practical necessity given the amount of crime out there and our very finite resources, so that's how it is.
P.S. Interns can either drive you to distraction and make you wish you'd never read their resume' -- or can make you get down on your knees and thank God that there is hope for the future after all. I've had both kinds.
Posted by: Bill Otis | May 15, 2024 11:17:20 AM
Bill :
"Reason tells us about two discrete jurisdictions that tried it 50 years ago or thereabouts and promptly canned the idea. No one else seems to have wanted to try it for the last five decades."
Your leaving out the Maricopa County example (Parnas & Atkins). And some others now that I look again. The capitol letters made it hard for me to read, normally I only have Fox News turned up that loud LOL
"A REVIEW OF STEPS TAKEN TO RESTRICT PLEA BARGAINING IN THE U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, THE STATE OF ALASKA, MULTNOMAH COUNTY, ORE., AND MARICOPA COUNTY, ARIZ., OFFERS EVIDENCE AGAINST CLAIMS THAT, WITHOUT PLEA BARGAINING, THE CRIMINAL JUSTICE SYSTEM WILL TOPPLE UNDER ITS OWN WEIGHT."
The last part might be opinion but it looks like there are 2-3 other good sized jurisdictions to look at. Also its hard to get farther apart politically than those last 2 counties. I mean, PORTLAND, dude, on one side (50% more liberal than the average city) and Mesa, AZ (50% more conservative) on the other.
"I rest my case."
This stuff has me wondering. (my friends say this never goes anyplace good haha)
The Reason piece said this: "Instead of clogging courts as some legal commentators had predicted, the reform caused Philadelphia’s prosecutors and defense attorneys to bargain over whether the defendant would elect a jury trial or a bench trial."
And this: "In another reform, in 1975, the attorney general of Alaska prohibited plea bargaining, but the Alaska Judicial Council found that in the two years following this decision, guilty pleas had only decreased from 94 percent of cases to 92 percent."
OK let's assume for a minute those aren't BS claims. If true, that means abolishing plea bargianing actually had little effect on outcomes. 2 percentage points is often a blip. Polls about who's ahead in the election this fall are going to shift by more than that amount many times before we get to Election Day. I'm sure Trump will remain ahead, and win (but we need election monitors to keep rat cheating under control!), but there's gonna be slosh. We can't freak out if he takes 2 point hit once in a while. As long as the pollsters fix their bias and he comes back from it. We've gotta stay strong and stay focused.
So my question is this, if the impact on outcomes is so low, why is anyone gung ho about the issue one way or the other?
Here's Reason again: "The reform thus preserved the presumption of innocence to a greater degree than traditional plea bargaining, but it nevertheless maintained the possibility of effective coercion into waiving one’s right to a jury trial."
That sounds a little heated: "coercion"? But...libertarians, what are you gonna do. But say theyre right. If prosecutors don't feel they're losing control over getting justice for the taxpayers (assuming no liberal judges and no defense lawyer pulls a Perry Mason), then why die on this hill?
I guess nearly all liberals don't care to. Chuck Schumer isn't running on this. Neither is Bernie Sanders, and he's a friggin COMMUNIST.
It looks like there are going to be presidential debates this year after all. Somehow I think this won't even come up. Maybe pardons. Maybe commutations for pot smokers. But not plea bargianing.
I'd like to know what President Trump thinks of plea bargains. He does love the Art of the Deal! So what makes it important to you? Is it those 2 % points? Is it so much sweeter to negotiate about this than over a bench vs. jury trial? Is the defense bar behind this? MAGA
P.S. you wore me out again. I need to hire an intern to write my posts for me LOL
Posted by: MAGA 2024 | May 15, 2024 6:42:57 PM
MAGA 2024 --
"But...libertarians, what are you gonna do."
Tell them fine, your client is going to trial. You don't like deals? Think they're coercive and corrupt? OK by me -- you won't be getting one. I only hope your client doesn't knock your head off when you tell him.
"But say they [libertarians] are right."
Then I wouldn't expect you to have a problem when your sixteen year-old dies of an overdose. Hey, everyone has the right to decide what goes into his own body! Yes? No? Wouldn't want to be paternalistic, would we?
"I'd like to know what President Trump thinks of plea bargains. He does love the Art of the Deal! So what makes it important to you?"
All those breathlessly hypocritical defense lawyers who get on their high horse denouncing plea bargains on the Internet -- then, when back in the office, call out the prosecutor as a stone-hearted SOB if he doesn't offer one to their client!
You gotta love these guys.
Posted by: Bill Otis | May 17, 2024 11:35:24 PM
Bill,
""But say they [libertarians] are right."
Then I wouldn't expect you to have a problem when your sixteen year-old dies of an overdose."
I was referring to the libertarins being right, for the sake of argument, about plea bargianing being "coercive". Reason Magazines word, not mine. I already said drug legalization was looney tunes. Read more closely, broseph!
"You don't like deals? Think they're coercive and corrupt? OK by me -- you won't be getting one."
There are more kinds of deals than plea bargians. Heres an example
https://www.usnews.com/news/politics/articles/2023-10-19/michigan-republican-charged-in-false-elector-plot-agrees-to-cooperation-deal
That was a good outcome. It saves President Trump the time it would take to sign his pardon.
MAGA
Posted by: MAGA 2024 | May 18, 2024 1:50:20 PM
