Difficult and Unpleasant Choices or Impossible and Coerced Ones?

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I have regularly highlighted the costs associated with America’s system of pleas: limiting citizens’ direct participation in the legal system, inducing guilty pleas from the innocent (or false guilty pleas), increasing mass incarceration, etc. Yet, the courts continue to rely on the presumption that a “mutuality of advantage” protects the accused from being coerced into accepting a plea offer. As a result, over 95% of criminal convictions in this country are the result of a defendant pleading guilty (rather than a jury returning a verdict of guilty).

Essentially, as long as the defendant “is free to accept or reject the prosecutor’s offer,” there appear to be no limits as to what tactics prosecutors can use to pressure the accused into pleading guilty. Courts have even sanctioned the extension of so-called exploding offers—plea offers with an expiration. Thus, we can now add time to the myriad pressures defendants face when deciding whether to plead guilty. In a further expansion regarding the legality of this practice, the U.S. Court of Appeals for the Ninth Circuit upheld a Maricopa County Attorney’s Office (MCAO) practice of retaliating against defendants who refuse to waive their right to a preliminary hearing (by pleading guilty). The decision upheld a previous opinion from the United States District Court for Arizona, which also defended the constitutionality of the practice.

The MCAO created Early Disposition Courts (or Regional Court Centers) as a means of (allegedly) adjudicating primarily non-violent drug cases more efficiently, the justification being that defendants could be diverted to treatment and rehabilitative programs sooner. Yet, according to data from the MCAO, a significant percentage of cases (including those not involving any drugs) are diverted to Early Disposition Courts (EDCs). In 2022, only 3.9% of these cases resulted in diversion.

Once diverted to the EDC, defendants are offered pleas that include statements like:

“*The offer is withdrawn if the witness preliminary hearing is set or waived. The offer may be changed or revoked at any time before the court accepts the plea. *Note: county attorney policy dictates that if the defendant rejects this offer, any subsequent offer tendered will be substantially harsher.”

These initial plea offers often expire within 24 hours of their issuance.

Notably, this “best offer first” policy is not exclusive to Maricopa County. In an effort to make the plea process as efficient as possible, prosecutors are often encouraged to make their most generous offers early. These policies consequently undermine the theory that plea negotiations are being made in the shadow of the trial (i.e., such that predicted trial outcomes heavily influence plea outcomes). Instead, in these jurisdictions, the longevity of the case (not its strength) will determine the parameters of the plea offer.

While elements of the MCAO’s EDC plea practices are not novel, their universal application across all EDC cases is unique. In addition, the MCAO makes acceptance of these initial pleas contingent on defendants’ waivers of their right to a preliminary hearing—a pre-trial right in which the State is required to demonstrate that they meet the simple threshold of probable cause (a much lower standard than the beyond-a-reasonable-doubt criterion applicable at a criminal trial). Importantly, many procedural and substantive rights guaranteed to the accused in Arizona, including the right to pre-trial discovery and speedy trial, only apply after a probable cause determination. “… given the combination of the condensed timeframe, severe lack of information, lack of meaningful assistance of counsel, and the threat of continued detention…” do defendants have any choice but to waive their rights? And, even if so, does this choice meet the Constitutional threshold of being a knowing, intelligent, and voluntary one?

Source: Sanit Fuangnakhon/Shutterstock

The United States District Court for Arizona upheld the MCAO’s EDCs, with the majority of their opinion focused on denying the MCAO’s motion to dismiss the case. Upon consideration of the arguments challenging the EDC's constitutionality, the court rests largely on the argument that anything goes so long as the defendant “is free to accept or reject the prosecutor’s offer”. The Ninth Circuit generated less than three pages of text to uphold the policy by simply stating that there are “… circumstances under which the policy would be valid."

Jared Keenan, the Legal Director of the ACLU of Arizona and lead litigator in the case explained, “The most disheartening aspect of our challenge is how the judiciary has completely abdicated its role to ensure those accused of a crime in the EDCs are afforded the Due Process protections guaranteed by the United States and Arizona constitutions. State court judges presiding over the EDCs are, at best, powerless and, at worst, complicit in perpetuating a system that coerces guilty pleas. And the federal judiciary signed off on the EDCs by failing to grapple with the uniquely coercive nature of MCAO’s Retaliation Policy, which does nothing to further those aspects of plea bargaining the Supreme Court finds constitutional, let alone desirable.”

If you were offered a “choice” while incarcerated, with limited access to relevant information, and under severe time pressure, would you feel free?