The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion addressing the ethical obligations of a prosecutor in negotiating guilty pleas for misdemeanor offenses. In Formal Opinion 486 (2019), the standing committee focused on the prosecutor’s ethical obligations when negotiating with an unrepresented person.
The committee emphasized that in such plea negotiations a prosecutor’s ethical obligations are independent of, and in some instances exceed, constitutional and statutory obligations. The committee noted the special role of a prosecutor as “a minister of justice and not simply that of an advocate,” quoting Comment 1 of Model Rule 3.8. We evaluate some of the conclusions the standing committee reached that we believe are problematic and the practical impact they are likely (or unlikely) to have on current misdemeanor plea negotiation practices. We also note the considerable ambiguity found in the opinion.
Background of Misdemeanor Enforcement
The committee begins by recognizing that misdemeanors comprise approximately 80 percent of state criminal dockets, more than doubling from five million to more than 10 million cases since 1972. The opinion does not explore the reasons for this increase, but some legal commentators argue that zero-tolerance policing of minor quality-of-life offenses are largely responsible for the increase in misdemeanor prosecutions.
The committee is rightfully concerned with how the justice system processes misdemeanor cases because the vast majority of defendants plead guilty at their initial appearance without the assistance of counsel. The misdemeanor caseloads in most jurisdictions are daunting for judges, prosecutors, and defense lawyers, and the speed with which they are disposed of is an obstacle to fairness. This is especially troubling because the collateral consequences that attach to misdemeanor convictions have expanded greatly. Even lesser misdemeanor convictions can lead to major collateral consequences such as deportation for noncitizens, long-term sex offender registration for some misdemeanor sex offenses, eviction from public housing for the individual and his or her family for low-level drug offenses, and loss of federal student loans for marijuana possession.
We share the concern about the problems posed by overcrowded misdemeanor dockets, which often function as assembly lines processing the accused as quickly and cheaply as possible through mass production of guilty and no contest pleas. The accused often do not understand either their rights or the full consequences of their pleas. We expressed some of these concerns in an earlier column. (Overloaded Prosecutors, 33 Crim. Just., no. 2, Summer 2018, at 31.) While we share the committee’s concerns, we think that many of the conclusions reached by the committee are too vague or too unrealistic to ameliorate the current problems with misdemeanor dockets.
Duty to Ascertain Probable Cause for Each Charge
Relying on Model Rule 3.8(a), which requires a prosecutor to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause,” the opinion requires a prosecutor to make an independent assessment of the relevant law and facts for each charge before negotiating pleas. The opinion states that failure to make such an assessment in each case is a violation of a prosecutor’s duty of competence under Model Rule 1.1 and duty of diligence under Model Rule 1.3. This conclusion is straightforward, and we agree that a prosecutor is required to make such an assessment in every case.
But the opinion goes on to state that because of these duties a prosecutor may not “rely uncritically on a police report or citation and a criminal background check . . . [u]nless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers” who investigated and prepared the documents. In our view, this part of the opinion is both vague and unrealistic.
What does independent fact checking require of a prosecutor? What does “uncritically” mean? What does the “unless” clause mean? Is the committee suggesting that the prosecutor must personally interview witnesses to corroborate what is in a police report? Personally interview the officer or officers who wrote the police report? Have the police reinvestigate the case? The committee seems to be saying that prosecutors are not acting competently if they rely on a police report without conducting additional, independent investigation. But it fails to address either what is required or when. For these reasons, this recommendation in the opinion is too vague to provide useful guidance.
We also believe that requiring prosecutors working in the context of overcrowded misdemeanor dockets routinely to conduct independent assessments of the facts is unrealistic. Such prosecutors are typically underfunded and thus will not have the means to conduct such independent investigations.
Rather than a presumption of regularity in the work of the police, the opinion presumes irregularity and states that a prosecutor may not rely on police reports and citations unless the prosecutor has “reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers.” We believe that a prosecutor should be able to assume the reliability of police reports and citations unless the prosecutor has reason to doubt them. Unless there is something that leads the prosecutor not to trust the charge or citation, such as something contradictory or suspicious about the police report or citation, or the prosecutor has reason to mistrust the law enforcement officer involved, a prosecutor should be able to rely on the police officer’s work.
Duties When Negotiating a Plea with an Unrepresented Accused
Among the ethics rules cited in the opinion, the committee identified Model Rules 4.1 and 8.4(c) as imposing constraints on a prosecutor negotiating a plea with an unrepresented person. The committee focused on how statements about the value of a plea offer would be misleading if the prosecutor does not disclose the legal relevance of a plea to enhancement of a sentence in any subsequent case and known collateral consequences of accepting the plea. We discuss each of these examples separately.
Legal relevance of a plea enhancement. Although the committee does not cite specific examples, some misdemeanor convictions trigger an enhancement of a sentence if there is a subsequent case. For example, in many jurisdictions, a prior driving under the influence conviction will lead to a mandatory jail sentence or a lengthier mandatory jail sentence for a second or third offense. Similarly, in most states a prior misdemeanor theft offense will permit a prosecutor to charge a second theft offense as a felony irrespective of the value of the stolen goods. A felony charge in a subsequent case will increase the range of punishment and often the resulting sentence.
If a defendant is represented by counsel, a competent lawyer will know and inform the defendant of plea enhancements. In such instances, the committee does not require the prosecutor to disclose the possible enhancement. When the person is unrepresented, the committee states that a prosecutor is required to disclose the consequences of the plea known to the prosecutor during the plea negotiation. The committee states that failure to make such a disclosure would violate Model Rule 4.1, which prohibits a prosecutor from making “a false statement of material fact or law to a third person.” The committee reaches this conclusion by relying on Comment 1 to the rule, which emphasizes that misrepresentation can “occur by partially true but misleading statements or omissions that are the equivalent of false statements.” The committee states that misleading or incomplete statements about the value of a plea offer also would be deceptive conduct that violates Model Rule 8.4(c), which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”
We agree with the committee that an unrepresented defendant is unlikely to have this important information and the prosecutor should be required to provide it. But what if the judge provides this information? If the judge advises the defendant, it does not seem necessary to require the prosecutor to do so. If the judge does not advise the unrepresented defendant, then there is good reason to have the prosecutor advise an unrepresented defendant.
Collateral consequences. The committee also concludes that a prosecutor can violate Model Rules 4.1 and 8.4(c) if the prosecutor “omit[s] known collateral consequences of accepting a plea.” The committee acknowledges that a “prosecutor will rarely know of all of the potentially relevant collateral consequences of accepting a plea,” and our experience supports this view because in most states there are dozens of possible collateral consequences for misdemeanors.
But is the committee correct in stating that the ethics rules require a prosecutor to advise an unrepresented defendant of known collateral consequences? Does this duty apply if the judge advises the defendant of collateral consequences through a bench card that lists collateral consequences, which some courts use? Would a prosecutor comply with the committee’s opinion by having an unrepresented defendant simply sign a sheet of paper listing all possible collateral consequences, a list that would be quite lengthy and not particularly informative? Also, what does the qualifier “known” signify here? The committee leaves these and other questions unaddressed, and doing so makes this aspect of the opinion too vague to provide useful guidance.
We also question the practaicality and workability of what the committee seems to be requiring about collateral consequences. How would anyone trying to obey or enforce the committee’s disclosure requirement figure out what a particular prosecutor knows about possible collateral consequences? Is true knowledge required? In other words, must the prosecutor be aware that it is practically certain a particular defendant will face a particular collateral consequence, such as deportation? Or is awareness of a probability less than practical certainty sufficient? If so, how probable must the risk of the collateral consequence be for prosecutorial awareness of it to qualify as knowledge? How would anyone seeking to enforce this requirement be able to establish such knowledge or lack thereof? We think that if an unrepresented person wants to enter a plea, it would be more appropriate to expect a judge to explain collateral consequences to the defendant before accepting the plea.
As Formal Opinion 486 documents, many misdemeanor docket systems are in crisis with judges, public defenders, and prosecutors all overburdened. By allocating additional responsibilities to overburdened prosecutors, we believe the committee is engaging in a form of magical thinking. The idea that simply adjusting a prosecutor’s duties will remedy the problems of an overburdened system when prosecutors themselves are overburdened is unrealistic. If a prosecutor is barely able to perform his or her duties under the way many current systems operate, how can the committee expect a prosecutor to do more? Rather, we should question whether a prosecutor as a minister of justice can ethically participate in such a system. We should raise the same questions for both judges and defense lawyers.
We support the committee in recognizing the problems with misdemeanor dockets and for attempting to provide guidance to prosecutors negotiating with unrepresented persons, but we believe some aspects of the opinion are problematic. We also believe that the only solutions to overloaded misdemeanor dockets are either filing fewer misdemenaor cases, as many now argue, or providing more judges, publicly funded defense lawyers, and prosecutors. Many current systems are broken. Piling more ethical obligations onto overloaded prosecutors is not a meaningful solution.