“Observance of the special obligations of prosecutors under
the Rules of Professional Conduct is critical to achieving fair guilty pleas,”
the opinion states.
According to the ABA Journal, Formal
Opinion 486 provides for “Obligations of Prosecutors in Negotiating Plea Bargains for
Misdemeanor Offenses,” the application of these ethical standards
apply regardless of constitutional requirements or whether the defendant is
represented by counsel.
“Hundreds of times weekly, prosecutors negotiate plea deals
with misdemeanor defendants who lack counsel and may agree to unfair
dispositions,” says Barbara S. Gillers, chair of the ABA Standing Committee on
Ethics and Professional Responsibility. “Opinion 486 imposes duties on
prosecutors and their supervisors to ensure that the accused has a reasonable
opportunity to obtain counsel, that decisions to resolve a case through plea
bargaining are grounded in the prosecutor’s independent assessment of the case,
and that prosecutors reveal known collateral consequences, which may include
deportation and the loss of eligibility for a wide range of public services,
including food assistance and public housing. The failure to take the
precautions described by the opinion especially harms the poor and minorities,
who are disproportionately represented among the defendant population.”
The guidance addresses Model Rules 1.1 (Competence), 1.3 (Diligence), 3.8 (Special
Responsibilities of a Prosecutor), 4.1 (Truthfulness
in Statements to Others), 4.3 (Dealing
with Unrepresented Person), 5.1 (Responsibilities
of a Partner or Supervisory Lawyer), 5.3 (Responsibilities
Regarding Nonlawyer Assistance), and 8.4 (Misconduct).
Under Rule 3.8(a), for example, prosecutors may not bring “a
charge that the prosecutor knows is not supported by probable cause.” This
means that a DA can’t begin a plea bargain without assessing each charge.
However, the opinion notes that because of limited resources and the perception
that a misdemeanor is “lower stakes,” prosecutors often rely “uncritically” on
a police officer’s report. “Unless the prosecutor has reasonable confidence in
the thoroughness of the fact finding and the evenhandedness of the judgment of
other law enforcement officers who prepare the supporting documents and investigation,
reliance on them is likely to be misplaced and the very discretion the Rule is
designed to protect may be abused,” the opinion states.
Additionally, the opinion warns that a prosecutor’s failure
to vet each charge independently, could violate the duty of competence under
Rule 1.1.
The opinion comes at a time when misdemeanor criminal
enforcement has received heightened attention.
About 80 percent of America’s criminal dockets are taken up
by misdemeanor offenses, a number that has doubled since 1972, according to the
opinion. This trend disproportionately impacts poor and minority people.
At the same time, prosecutors are engaging in plea
bargaining before the right to counsel has been raised, using delay tactics or
the threat of a higher sentence to keep the defendant from invoking the right
to counsel. The opinion also found that tactics, including forcing a defendant
to waive his or her right to counsel as a criteria to negotiate a plea, violate
the Rules of Professional Conduct and potentially the Constitution.
These practices occur, in part, because many people charged
with a misdemeanor are given a citation or notice to appear and are not
arrested for the offense, which means the accused is not read his or her
rights. In such situations, it may fall to the prosecutor to make clear to the
accused their right to counsel.
Noting that, in some cases, the accused may choose to be
unrepresented or does not qualify for subsidized representation from the state,
prosecutors have unique and heightened duties. For example, if a prosecutor
does not mention the impact of the plea deal on a separate case or the broader
social or economic impacts of a criminal record, called collateral
consequences, it could be considered misrepresentation or deceptive conduct
under Rules 4.1 and 8.3(c), respectively.
“A prosecutor will rarely know all of the potentially
relevant collateral consequences of accepting a plea or the exact nature of any
subsequent sentence enhancement,” reads the opinion. “However, if the
prosecutor knows the consequences of a plea—either generic consequences or
consequences that are particular to the accused—the prosecutor must disclose
them during the plea negotiation.”
Ultimately, the opinion looks to reinforce the idea that, “a
prosecutor’s duty is to seek justice, not merely to convict.”
“The professional integrity of prosecutors is essential to
the administration of criminal justice,” the opinion states.
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