There are numerous barriers to reducing and eliminating police misconduct, especially excessive use of force and other civil rights violations. Some involve prosecutors. One such barrier, which we have written about previously, is reluctance on the part of a local prosecutor to bring charges against police officers the prosecutor works with and relies upon. (Prosecutorial Conflicts of Interest and Excessive Use of Force by Police, 30 Crim. Just. 47 (Summer 2015).)
For example, prosecutors did not bring charges against the police officers who shot and killed 12-year-old Tamir Rice in Cleveland, Ohio, and 19-year-old Michael Brown in Ferguson, Missouri. Nor did a prosecutor charge the police officer who fatally choked Eric Garner in New York City. In these instances of police violence unaddressed by the criminal justice system, surviving family members were able to achieve some accountability by bringing civil rights lawsuits against the individual police officers, police departments, and cities, which resulted in significant monetary settlements: $6 million to the family of Tamir Rice, $1.5 million to the family of Michael Brown, and $5.9 million to the family of Eric Garner.
Another barrier, though, confronts surviving victims of police misconduct seeking relief in civil courts: prosecutorial use of release-dismissal agreements to shield police misconduct. In a release-dismissal agreement, a prosecutor offers to dismiss criminal charges against a person in exchange for the person giving up the right to file a civil lawsuit based on injuries resulting from police misconduct. Under such an agreement, a prosecutor uses criminal charges as leverage to obtain a release of civil claims against a police officer, police department, and municipality.
Use of release-dismissal agreements raises significant legal and ethical issues, which we address in this column. We begin by analyzing the arguments for and against release-dismissal agreements and the possible scenarios in which a prosecutor may enter into one. We also discuss the legal status of release-dismissal agreements and the ethical issues they raise.
Arguments For and Against Release-Dismissal Agreements
Civil Side Arguments
An argument in favor of release-dismissal agreements from the perspective of the civil justice system is that they eliminate some meritless civil claims. A meritless claim alleging excessive use of force or other misconduct brought against a police officer, police department, and city imposes significant burdens on the defendants in the form of money and time and on the civil justice system in terms of the judicial resources necessary to dispose of such cases.
An argument against the use of release-dismissal agreements from the civil justice system perspective is that permitting a prosecutor to use criminal charges as leverage to gain release of civil claims will lead some individuals to forgo valid civil claims. These people will not receive compensation they deserve and deterrence of wrongdoing by police will be undermined.
A second argument against the use of release-dismissal agreements is that tying the dismissal of criminal charges to release of civil claims serves to encourage filing or threatening meritless civil claims against the police to gain leverage against pending or potential criminal charges. In this way, release-dismissal agreements may actually serve as a catalyst for meritless claims against the police and increase the burdens placed on civil defendants and the civil justice system.
Criminal Side Arguments
From the perspective of the criminal justice system, an argument in favor of release-dismissal agreements is that such agreements eliminate meritless criminal charges, which are burdensome to the accused in terms of time, damage to reputation, and money, and burdensome to the criminal justice system in terms of the judicial, prosecutorial, and other public resources. A release-dismissal agreement, especially early on in a criminal matter, minimizes such burdens.
An argument against release-dismissal agreements from the criminal justice system perspective is that permitting a defendant to use a civil claim as leverage to gain dismissal of criminal charges will likely lead some prosecutors to forgo valid criminal charges in order to obtain a release of civil claims against a police officer, a police department, and a city.
A second argument against the use of release-dismissal agreements is that dismissing criminal charges in exchange for the release of civil claims encourages prosecutors to threaten, file, or continue to pursue meritless criminal charges to gain leverage against civil claims. Thus, release-dismissal agreements may increase rather than decrease meritless criminal charges.
Evaluating the Use of Release-Dismissal Agreements
Consider the four possible scenarios described in the following paragraphs. In which of these is it clear that the interests of both the civil and criminal justice systems are well served?
First, there are times when both criminal charges and civil claims lack merit. Here, a release-dismissal agreement eliminates meritless matters in both criminal and civil courts, creating what is clearly a win-win situation because neither the criminal charges nor the civil claims deserve to be fully adjudicated.
Second, there are some situations in which criminal charges are meritorious, but civil claims are not. A release-dismissal agreement in such a scenario poses the risk that a prosecutor will give up a valid criminal charge in exchange for release of an invalid civil claim. While the release of an invalid claim is a positive from the perspective of the civil justice system, dropping a meritorious criminal charge is not a positive from the perspective of the criminal justice system. Such an exchange is not consistent with a prosecutor fulfilling his or her obligation to prosecute the guilty. Rather than a win-win situation, here there is a win for the civil justice system and a loss for the criminal justice system.
Third, there are situations in which criminal charges lack merit, but the civil claims have merit. While dropping a meritless criminal charge is a positive from the perspective of the criminal justice system, the release of a meritorious civil claim is a negative from the perspective of the civil justice system. A deserving, injured person is uncompensated and police misconduct is undeterred. As in the second scenario described above, rather than a win-win, there is both a win and a loss.
Fourth, there are times when both criminal charges and civil claims have merit. Here, a release-dismissal agreement prevents both valid criminal charges and valid civil claims from being adjudicated. This is clearly a lose-lose situation because both valid criminal charges and valid civil claims deserve to be adjudicated and such adjudication creates multiple benefits for society, such as deterrence of future wrongdoing and compensation of those who have been wrongfully injured.
Those in favor of release-dismissal agreements tend to assume and focus on the first scenario, in which neither criminal charges nor civil claims are valid. They do not consider the other three scenarios. The above review of the “wins” and “losses” in the four possible scenarios in which release-dismissal agreements may be used makes it clear that their use may lead to an equal possible number of wins and losses, four each—two wins in the first scenario and one win in both the second and third scenarios, and two losses in the fourth scenario and one loss each in the second and third scenarios. Because the likely wins and losses are equal, should either the criminal or civil justice systems favor release-dismissal agreements as a matter of policy?
Those who favor release-dismissal agreements also tend not to consider fully the ethics issues for prosecutors implicated by release-dismissal agreements. These ethical problems, in addition to the “draw” argument mentioned above, strengthen the case against release-dismissal agreements.
Legal Status of Release-Dismissal Agreements
Initial Treatment By Federal And State Courts
Initially, the majority of federal courts considering release-dismissal agreements held them per se invalid. In the leading case, Dixon v. District of Columbia, 394 F.2d 966 (D.C. Cir. 1968), the D.C. Circuit Court found that such agreements conflicted with the legitimate prosecutorial role and deterred “people from exercising their right to protest official misconduct and petition for redress of grievances.” (Id. at 968.) The Dixon court also was concerned that release-dismissal agreements “tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint.” (Id. at 969.)
Other federal courts largely followed Dixon’s reasoning and refused to enforce release-dismissal agreements. Some courts added additional reasons not to enforce the agreements. For example, the Seventh Circuit found the agreements “inherently coercive” and “void against the public policy.” (Boyd v. Adams, 513 F.2d 83, 88 (7th Cir. 1975).) The Ninth Circuit likened a release-dismissal agreement to extortion, MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir. 1970), cert. denied, 400 U.S. 852 (1970). In Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1431 (10th Cir. 1984), the Tenth Circuit stated that when “public officials use criminal complaints to coerce a release of civil liability from injured persons, this action . . . qualifies as a deprivation of due process.”
A majority of state courts considering release-dismissal agreements adopted an analysis similar to the federal courts. Most focused on the coercive nature of such agreements and concluded that the agreements were against public policy because they deny access to civil courts to address the deprivation of rights and injuries. Some state courts also found that a prosecutor’s representation of the civil interests of the police and municipality conflicted with and was not a valid part of a prosecutor’s role in the criminal justice system.
A minority of courts looked more to the voluntariness of such agreements under a contract theory. For these courts, the validity of a release-dismissal depended on a case-by-case review of the facts to determine if the defendant entered the agreement voluntarily. If such an agreement was entered into voluntarily, then it was presumed enforceable.
Supreme Court Treatment
The Supreme Court considered release-dismissal agreements for the first and only time in Town of Newton v. Rumery, 480 U.S. 386 (1987). The Court, in a plurality opinion, narrowly approved the release-dismissal agreement before it based on the specific facts in the case. In finding that a release-dismissal agreement could be enforced under some circumstances, the Court rejected the approach of a majority of other courts that previously had found release-dismissal agreements per se invalid. Instead, the Court compared a release-dismissal agreement to a plea bargain in which the defendant waives important constitutional rights. The Court found there was “no reason to believe that release-dismissal agreements pose a more coercive choice that other situations” that the Court has accepted. (Id. at 393.) The Court also reasoned that “[i]n many cases a defendant’s choice to enter into a release-dismissal agreement will reflect a highly rational judgment” that certain dismissal of criminal charges outweighs uncertain potential recovery in a civil suit. (Id.)
The Court then considered the facts of the case. The criminal defendant was a sophisticated businessman who was not in jail at the time of the agreement. He had an experienced attorney, who suggested and drafted the release-dismissal agreement, and he had three days to consider the agreement before signing it. The plurality found the agreement voluntary, not the product of prosecutorial misconduct, and “that enforcement of this agreement would not adversely affect the relevant public interest.” (Id. at 398.)
The Court adopted a case-by-case approach that focused on the voluntariness of the agreement, the prosecutor’s role and motivation, and the public interest involved. A release-dismissal agreement should only be held invalid if “its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.” (Id. at 392 & n.2.)
The Court did not elaborate on the public policy interests that would render a release-dismissal agreement invalid but made it clear that the vindication of constitutional rights through a civil action and exposure of official misconduct alone were not enough to invalidate release-dismissal agreements because “[m]any [such civil suits] are marginal and some are frivolous.” (Id. at 395.) Since the Court’s decision in Rumery, lower courts have struggled with assessing the public interest in enforcing release-dismissal agreements.
In dissent, Justice Stevens, joined by three other justices, found several flaws in the plurality’s reasoning. First, the dissent distinguished release-dismissal agreements from plea bargains in important ways. A plea bargain represents a compromise between the prosecutor and defendant in which the defendant admits wrongdoing and forgoes further prosecution in exchange for the prosecutor being relieved of “the burdens of litigation” as well as advancing “society’s interest in imposing appropriate punishment upon an admitted wrongdoer.” (Id. at 409–10 (Stevens, J., dissenting).) The dissent reasoned that such mutuality does not exist in a release-dismissal agreement because the defendant “is forced to waive claims based on official misconduct . . . in exchange merely for the assurance that the State will not prosecute him for conduct for which he has made no admission of wrongdoing.” (Id. at 410.) While the prosecutor is relieved of going to trial, the State’s “willingness to drop the charge completely indicates that it might not have proceeded with the prosecution in the first place. No social interest in the punishment of wrongdoers is satisfied; the only interest vindicated is that of resolving once and for all the question of § 1983 liability.” (Id.) Thus, Justice Stevens reasoned that “the prosecutor’s interest in obtaining a covenant not to sue will be strongest in those cases in which he realizes that the defendant was wrongfully accused,” when the prosecutor is ethically obligated to drop the charges. (Id. at 409.)
Second, the dissent stated that the plurality assumed, without factual support, that many of the civil rights suits are marginal or frivolous, and ignored that each civil claim should be subject to the adversary process because some civil suits “in which release-dismissal agreements are sought are meritorious.” (Id. at 411 (citing to several cases, including Dixon, in which lower courts rejected release-dismissal agreements and permitted civil suits to proceed).) The dissent stated that a release-dismissal agreement requires a defendant to give up his or her civil claim that is unrelated to possible wrongdoing in the criminal charge being dismissed.
On these grounds, the dissent found that even if a defendant’s decision to enter into a release-dismissal agreement is “deliberate, informed, and voluntary,” the prosecutor’s use of criminal charges to obtain the civil release “is inherently coercive” and “the agreement exacts a price unrelated to the character of the defendant’s own conduct.” (Id.)
The dissent also identified ethical issues release-dismissal agreements trigger including a prosecutor’s conflict of interest between the duty to represent the sovereign’s interest in fair and effective enforcement of criminal laws and the prosecutor acting to protect the civil liability interests of the police officers, police department, and municipality. (Id. at 412.) It also pointed out that release-dismissal agreements may encourage a prosecutor to bring or continue criminal charges that lack merit contrary to a prosecutor’s ethical obligation not to do so. We discuss these and other ethical issues in a subsequent section of this column.
Current Legal Status
Federal courts and most state courts have followed the Supreme Court’s case-by-case approach set forth in Rumery, but there are some exceptions and some limitations. At least one state, New York, has adopted a very strong presumption against release-dismissal agreements. In Cowles v. Brownell, 538 N.E.2d 325, 327 (1989), the New York Court of Appeals rejected the plurality’s reasoning in Rumery. Instead, the Court found that a release-dismissal agreement is not fundamentally the same as a plea bargain, where there is some mutuality of advantage to both the prosecutor and defendant and the public interest is served in the criminal justice system. (Id.) In the release-dismissal agreement before it, the New York Court of Appeals found the integrity of the criminal justice system compromised because there was no benefit, only a loss, by the dismissal of the criminal charges. The Court reasoned that if the charges were not provable, the prosecutor had an ethical duty to dismiss them without extracting the price of a civil release. If the evidence was sufficient to gain a conviction, as the prosecutor maintained, then the dismissal of charges was contrary to the public interest in seeing a wrongdoer punished. As in some of the scenarios we analyzed at the outset of this column, the court found “no benefit, only a loss” to the criminal justice system. (Id. at 327.) The Court concluded that the release-dismissal agreement undermined “the legitimate interests of the criminal justice system solely to protect against civil liability; it surely does not foster public confidence that the justice system operates evenhandedly.” (Id.)
Other courts have imposed various limitations on the application of the Rumery decision. Some have held that the voluntariness of a release-dismissal agreement can be a factual issue that should be left to a jury, other courts have found that the prosecutor’s stated reasons for seeking the release also may be a factual issue for a jury to decide, and still other courts have held that the burden is on the civil defendants to demonstrate the public interest in enforcing an agreement not to sue. (See, e.g., Berry v. Peterson, 887 F.2d 635, 637 (5th Cir. 1989) (finding that voluntariness is arguably the only issue that may be left for a jury to decide); Livingstone v. N. Belle Vernon Borough, 12 F.3d 1205, 1215 (3d Cir. 1993) (en banc) (“[T]here may be factual issues intertwined with the legal issues, such as whether the public interest reason proffered by the prosecutor is the actual reason that motivated the prosecutor to enter into the release-dismissal agreement.”); Cain v. Darby Borough, 7 F.3d 377, 383 (1993) (en banc) (holding that the prosecutor must demonstrate that upholding a release-dismissal agreement is in the public interest).) Courts also have held that a release-dismissal agreement will not be enforced if it is the result of a blanket policy requiring a release for dismissal of criminal charges or entry into a diversion and dismissal program, id., or when the police obtain a civil release in exchange for a promise not to seek charges against a person in custody. (Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987); Spradlin v. City of Owasso, No. 12-CV-497, 2014 WL 1664974 (N.D. Okla. Apr. 25, 2014).)
Ethics of Release-Dismissal Agreements
Release-dismissal agreements raise several ethics issues when there are valid criminal charges or valid civil claims. For the prosecutor, these include conflict of interest, bringing charges or continuing a criminal case without probable cause, and engaging in conduct prejudicial to the administration of justice.
Conflict of Interest
As the dissent in Rumery and other courts have observed, a prosecutor has a conflict of interest between performing the prosecutor’s law enforcement function and representing the civil and reputational interests of a city, police department, and individual police officers. It is helpful at the outset to note Model Rule 3.8, entitled “Special Responsibilities of a Prosecutor,” does not address prosecutor conflict of interest. Because no state has enacted an ethics conflict of interest rule specifically for prosecutors, Model Rule 1.7, the conflict of interest rule generally applicable to all lawyers, governs conflicts of interest for prosecutors.
Model Rule 1.7(a)(2) states that a conflict of interest exists when “there is a significant risk that the representation of one or more clients will be materially limited by a lawyer’s responsibilities to another client, a former client or a third person or by the personal interest of the lawyer” (emphasis added). Similarly, the Restatement of the Law Governing Lawyers does not have a conflict of interest provision specifically dealing with prosecutors. Instead, like the Model Rules, the Restatement has a general risk rule applicable to all lawyers, including prosecutors. Restatement § 121 defines a conflict of interest as occurring whenever there is a “substantial risk” that the lawyer’s representation of a client will be “materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person” (emphasis added). The focus in the Restatement, as in the Model Rules, is on the risk that various incentives may adversely affect a lawyer’s representation of his or her client.
In our view, the ethics rules and the Restatement prohibit a prosecutor from entering into a release-dismissal agreement. Where there are merits to the criminal charges, there is a risk that is significant, using Model Rules terminology, and substantial using the Restatement’s language, that the prosecutor will not pursue the government’s interest in the criminal matter due to the civil interests of the police and municipality. Similarly, where there is merit to the defendant’s potential civil claims and no merit for continuing a criminal prosecution, the prosecutor’s duty to enforce the laws fairly is at serious risk of being compromised. Conflict of interest is absent only in cases where both the criminal case and civil claims are weak, as in our first scenario.
Duty to Refrain from Prosecuting a Charge Not Supported by Probable Cause
Model Rule 3.8 states: “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” In addition, ABA Criminal Justice Standards for the Prosecution Function Standard 3-3.9(a) states: “A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.”
As observed in the Dixon case and in the Rumery dissent, release-dismissal agreements create an unhealthy incentive for a prosecutor to bring or continue criminal charges in violation of the prosecutor’s duty under Rule 3.8(a) and contrary to the prescriptions in Justice Standard 3-3.9(a). While we do not assume that a prosecutor will violate this duty in every case involving a release-dismissal agreement, we believe a prosecutor violates this duty whenever the prosecutor conditions the dismissal of criminal charges that lack merit on a release of civil claims.
Prejudicing the Administration of Justice
Release-dismissal agreements also trigger a possible violation of Model Rule 8.4, which provides: “It is professional misconduct for a lawyer to: . . . (d) engage in conduct that is prejudicial to the administration of justice.” Under the Model Code of Professional Responsibility, DR 7-105(A) stated: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” While the Model Rules did not incorporate this Model Code provision, several jurisdictions either have preserved this prohibition in their rules of professional conduct or consider threatening criminal action to gain advantage in a civil matter as prejudicing the administration of justice under the jurisdictions’ versions of Model Rule 8.4(d).
Consistent with this view, the National District Attorney Association (NDAA) National Prosecution Standard 4-2.3, under the heading “Improper Leveraging,” states that “[t]he prosecutor should not file charges where the sole purpose is to obtain from the accused a release of potential civil claims.” Conditioning the dismissal of criminal charges that a prosecutor determines lack merit on a release of civil claims also would be contrary to the prescription against improper leveraging found in NDAA Standard 4-2.3.
Ethics Authorities’ Positions on Release-Dismissal Agreements
Ethics authorities in several states have issued advisory opinions on the ethics of release-dismissal agreements. Prior to the Rumery decision, the consensus was that such agreements violated one or more of the ethical obligations of the prosecutor that we describe in the prior section. Since Rumery, ethics authorities appear to be almost evenly split. Some conclude that release-dismissal agreements are unethical only under some circumstances, while others find release-dismissal agreements to be per se unethical.
Prior to Rumery, the Colorado Bar Association Ethics Committee found that release-dismissal agreements violated a prosecutor’s ethical duties not to bring or continue charges without probable cause and the proscription against threatening criminal charges to gain advantage in a civil matter. (Colo. Formal Op. 62 (1982).) After Rumery, the ethics committee revised its position to hold that a prosecutor may only enter into a release-dismissal agreement if the prosecutor is satisfied the following conditions are met: (1) “the charges are well-founded and that no serious civil rights violation has occurred”; (2) “the defendant’s decision is informed” considering “the opportunity to consult with counsel and to participate meaningfully in the negotiation . . . the defendant’s age, mental status, education and the like”; and (3) “the defendant’s decision is voluntary” considering “the defendant’s mental status, whether the defendant was in custody at the time, whether the defendant was under the influence of any drug at the time and the like.” (Colo. Ethics Op. 62 (rev. 1988).) Other bar association ethics committees have placed similar conditions on prosecutors entering into release-dismissal agreements. (See, e.g., Conn. Ethics Op. 00-24 (2000) (holding that a prosecutor may enter into a release-dismissal agreement only if there is probable cause for the criminal charges and the prosecutor is not motivated primarily to obtain a civil release); Or. Ethics Op. 2005-113 (2005) (holding that a prosecutor may condition dismissal of pending charges on a civil release but would violate Oregon RPC 3.8 and 8.4 if there were no probable cause to support the charges or prosecution was pursued solely to seek a civil release).)
State ethics authorities that have found release-dismissal agreements per se unethical have done so on one or more grounds. In Ind. Op. No. 2005-2 (2005), the Indiana State Bar Association Legal Ethics Committee found that a prosecutor proposing or entering into release-dismissal agreements would violate three Indiana Rules of Professional Conduct (RPC). First, the prosecutor would have a conflict of interest under RPC 1.7(a) due to “the competing interests of the state of Indiana, whom he/she represents, and the interests of the law enforcement agency or municipality who is the subject of a potential civil suit.” (Id.) The committee also agreed with the dissent in Rumery that a release-dismissal agreement can lead to a violation of RPC 3.8(a) by interfering with a prosecutor’s duty to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” (Id.) Finally, the committee found that a prosecutor entering into a release-dismissal agreement is violating RPC 8.4(d), engaging in conduct prejudicial to the administration of justice, by “using the power of a criminal charge to coerce a defendant to release a civil right.” (Id.) The ethics committee also held that “a criminal defense attorney or civil attorney who proposes a release-dismissal agreement would be in violation of RPC 8.4(d) as well.” (Id.) Other state ethics opinions adopting the per se unethical view are Cal. Ethics Op. No 1989-106 (1989), N.J. Ethics Op. 714 (2008), Ohio Bd. Comm. Op. 94-10 (1994), and S.C. Bar Ethics Op. 2005-17 (2005).
In our view, prosecutors should not use and should not be allowed to use release-dismissal agreements. As pointed out above, the ethical risks are substantial enough by themselves to constitute conflict of interest. Concern about the magnitude of the risks such agreements create is compounded by monitoring difficulties—the pragmatic problems inherent in trying to determine whether such ethical risks actually affected prosecutorial behavior. It also is compounded by lack of sufficient justifiability for taking such serious ethical risks. There simply aren’t sufficiently strong reasons for prosecutors to be taking the substantial risks these agreements create.
In addition to the ethical arguments against release-dismissal agreements, we believe these agreements are bad public policy. As the dissent in Rumery explained, such agreements undermine both vindication of the civil rights of citizens harmed by police misconduct and deterrence of such misconduct.