America’s criminal justice system is a composite of contributions from all three branches of government—the judicial, the legislative, and the executive. This is the criminal justice template in every jurisdiction, whether state or federal. When viewed organically, the complete system is composed of a multitude of fail-safe mechanisms intended to ensure that an individual who falls within its parameters is treated with fairness, justice, mercy, and a recognition that people and circumstances do change. The efficacy of these individual fail-safe mechanisms is undoubtedly subject to debate, but no doubt exists that these various avenues of relief and mitigation are essential components and bulwarks of the system.
Unfortunately, there is an alarming trend among some prosecutors at both the state and federal levels to use the power of plea bargaining to skew the criminal justice system by employing their negotiating leverage to deprive individual defendants of access to one or more of those fail-safe mechanisms. “These conditions routinely require a defendant to waive the right to file an appeal, to seek post-conviction relief, to assert ineffective assistance of counsel, to pursue a claim of actual innocence, and/or to request preservation of the evidence.” J. Vincent Aprile II, Waiving the Integrity of the Criminal Justice System, Crim. Just., Winter 2010, at 46. But in some jurisdictions the prosecution’s plea terms have expanded into other functions of the criminal justice system.
Governors and the president of the United States possess a clemency power to commute a sentence or to pardon a convicted individual. See, e.g., U.S. Const. art. II, § 2. Whether a governor or a president may abuse the pardon power in general or for the charged individual is not the relevant question when a prosecutor requires a defendant as a condition of a guilty plea to agree never to seek a pardon, a commutation of a sentence, or any form of clemency. This is the prosecution intentionally depriving an individual accused of one of the fail-safe mechanisms inherent in the criminal justice system.
Regardless of the prosecution’s evaluation of or concerns about a particular governor or president, a prosecutor should not require a criminal defendant, as a condition of a plea agreement, to forsake the right to seek clemency forever or even for a period of years. The right to seek clemency, in its various forms, offers a convicted defendant at any time during the service of the imposed sentence or thereafter an ever-present mechanism to seek complete or partial relief from the conviction and sentence on any grounds, whether known at the time of the conviction or that have occurred since the conviction. Prosecutors are not prescient; they lack the ability to foretell a defendant’s future. A plea agreement that forecloses an accused’s access to executive clemency, whether temporarily or permanently, inherently eliminates an essential fail-safe component of the system without regard to unknown future events.
A condition of a plea agreement where probation is recommended that, should a probation authority refer the defendant to the court for violation of a probation requirement, the defendant agrees his probation will be revoked is also the prosecution eliminating yet another systemic safeguard for a defendant who has been granted the right to complete his sentence without confinement. This term, if agreed to by the accused, requires the sentence of probation to be revoked even if the probation violation is false, incorrect, or otherwise unreliable or inapplicable. This is the prosecution erasing an accused’s entitled prophylactic measure without any legitimate basis in fact or law, but only the prosecution’s unconscionable and unchecked leverage in the negotiating process.
Prosecutors have even conditioned guilty pleas on defendants waiving their right to seek compassionate release during their incarceration, which in various jurisdictions may be based on such factors as a prisoner’s terminal illness, incapacitating mental or physical deterioration due to aging, family considerations, and/or other extraordinary and compelling reasons. At least one federal prosecutor had an apparently boilerplate condition in his office’s guilty plea offers that the accused “agreed not to seek relief under 18 U.S.C. § 3582,” the federal compassionate release statute. See Orders Granting Compassionate Release and Re: Compassionate Release, USA v. Trent, Case No. 16-cr-00178-CRB-1 (N.D. Cal. Apr. 9, 2020). That prosecutor has subsequently announced in a court filing that his office had eliminated that language from its plea offers.
Without addressing the legal specifics of the routine inclusion of that particular waiver clause in plea agreements generally or in the Trent case, that office’s previous insistence on that particular waiver illustrates the scope of this insidious problem as terms and conditions of plea agreements are used to strip criminal defendants of future rights and fail-safe provisions built into the criminal justice system.
Criminal defense attorneys may bear some blame for guilty plea waivers that undermine the system’s safeguards. A defense counsel faced with a difficult case may begin to look for some aspect of the case, including surveying a client’s constitutional and statutory rights, to use as a bargaining chip in plea negotiations. Finding very little to work with, counsel may propose to the client giving up one or more of these protective mechanisms to facilitate a plea agreement—procedures that may appear very unimportant at that moment to an accused facing the possibility of a lengthy or extremely severe sentence. Again, just as prosecutors, neither the accused nor defense counsel is clairvoyant, able to predict the client’s future and the need for one of these avenues of relief. Who would have predicted years before the novel coronavirus pandemic the havoc this virus would wreak on society, including the nation’s criminal justice system, especially its prisons and jails?
In most situations, the ultimate decision on whether to accept a condition in a plea offer is the defendant’s. Nevertheless, there is a “critical obligation of counsel to advise the client of ‘the advantages and disadvantages of a plea agreement.’” Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1484 (2010) (quoting Libretti v. United States, 516 U.S. 29, 50–51 (1995)). Trading away a client’s rights to opportunities for future relief, even though those avenues do not guarantee success, requires a comprehensive explanation by counsel of what the client is forsaking. One wonders as to the scope of the advice some criminal defense attorneys may provide their clients when suggesting the client should offer to bargain away an accused’s future rights to obtain a deal or when explaining the waiver of those rights as demanded by the prosecution in plea negotiations.
These post-conviction safeguards were created to ensure and protect the integrity of the criminal justice system, providing transparency as well as recognition of changing personalities and circumstances, not to serve as negotiation ammunition in plea bargaining for either side. A prosecutor’s relentless striving for finality is not a legitimate basis for requiring an accused to forfeit one or more of these avenues of future relief and skew for that criminal defendant the protections of a comprehensive criminal justice system.
In some situations and jurisdictions, there may be ways to reverse guilty plea conditions that skew the system. One basis may be that the skewing condition is unethical for either or both the prosecutor and defense counsel to negotiate. For example, it may be unethical for either a prosecutor or defense attorney to require as a condition of a plea agreement a defendant must waive the right to raise a claim of ineffective assistance of counsel during plea negotiations. See, e.g., United States ex rel. U.S. Attorneys v. Ky. Bar Ass’n, 439 S.W. 3d 136, 157–58 (Ky. 2014). It may be that a plea condition is illegal and void when imposed by a judge in sentencing because it is in contravention of or contrary to statutory law controlling the sentence for the offense in question, rendering the illegality of the imposed condition unwaivable by the accused. Even though relief from these types of guilty plea conditions may be potentially available, that possibility is insufficient to justify prosecutors requiring plea agreement terms that deprive an accused of future avenues of relief from some aspect of the sentence.
As society is confronted by the realities of wrongful convictions, excessive sentences, racial and economic disparities and inequities, incompetent defense attorneys, prosecutorial misconduct, and judicial misconduct, to name but some of the problems plaguing the criminal justice system, the need for transparency and these inherent fail-safe protections is essential. Neither prosecutors nor defense counsel should be permitted to use these avenues of future relief as negotiation currency, even with the consent of the accused, as these plea conditions effectively disassemble essential systemic safeguards designed to ensure justice, fairness, and mercy for all who are convicted and sentenced in the criminal justice system.