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Are plea agreements constitutional contracts?

Attorneys litigating the breach of a plea agreement might want to take a look at this new paper, Plea Agreements as Constitutional Contracts, by Professor Colin Miller of the University of South Carolina Law School. It highlights some interesting issues to raise on behalf of our clients–issues that could well make their way to SCOTUS. It seems Bill Tyroler was ahead of Professor Miller though. Years ago he did two posts regarding Wisconsin cases, in which he argued that plea agreements are “constitutional contracts” and should be construed as such.  See Bill’s posts here and here.

{ 3 comments… add one }
  • Bill Poss July 14, 2017, 11:10 am

    The problem is “so what.” So what if we can compel the DA to live up to their end of the “bargain.” I have a sexual assault case right now where I may be able to compel the DA to present a specific recommendation (in my case a post-plea DPA) to the court. The court is under no obligation to accept the recommendation. In my case the alleged victim’s are screaming for blood. I would like to hear other thoughts on the issue.

  • wm. tyroler July 14, 2017, 5:06 pm

    Bill Poss’s frustration is quite understandable; a plea agreement binds the parties, not the judge. I’m not sure there’s anything in Santobello that will cure that problem.
    Incidentally, Colin Miller’s fine paper is worth close study. He identifies a number of implications flowing from the idea that a plea bargain is a “constitutional contract” but none, I don’t think, more important than this: “because it is the Due Process Clause that mandates the prosecution’s performance, many courts have placed a greater degree of responsibility on the State than they place upon criminal defendants and/or parties to private contracts.” (The copy I downloaded isn’t paginated, but I think the quote is from p. 22.) What I’d say is that in other words, the state must be held to a meticulous standard of strict adherence to the terms of the agreement. What that gets you is an easier time finding prosecutorial breach — a guarantee of a fairer process but not, as Bill P. reminds, a particular outcome. On the other hand, holding the prosecutor to an appropriately high standard of compliance may well inhibit thinly disguised displeasure with a lenient but bargained-for result. Better than nothing, and perhaps in some instances, much better.

  • Colin Miller July 18, 2017, 10:33 am

    ADMIN: Thanks for posting this entry and linking to the prior posts.

    Bill Poss: I guess this gets to the question of whether a judge is likelier to accept a sentencing recommendation when there is more of a “united front” as opposed to the prosecutor making a perfunctory recommendation or maybe even implicitly undermining the recommendation. I would love to know the answer.

    wm. tyroler: Yes, I think that’s the key argument, and it’s one that most courts seem to accept. But when it gets to certain plea bargaining situations, they fall short in applying this logic.

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