Prosecutors, Ethics, and Plea Bargaining in Misdemeanor Cases

The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors. ­ The criticism. ABA Formal Opinion 486 (May 9, 2019) cites legions of research supporting the following observations: Misdemeanors comprise 80 percent of state criminal dockets. The number of misdemeanor prosecutions has doubled since 1972. This expansion has had a “‘concentrated impact on communities of color.’” Most defendants plead guilty at the first setting of the case. Dockets are overcrowded, and each individual case may be afforded only a few minutes. Collateral consequences resulting from misdemeanor convictions have expanded. Some prosecutors are negotiating plea agreements in a manner that is inconsistent with the accused’s right to counsel and the duties set forth in the Model Rules of Professional Conduct. The ethical issues. The opinion cites the following methods of negotiated plea agreements that have been documented and that violate the model rules: Requiring or encouraging plea negotiations with a prosecutor before the right to counsel has been raised; Using delay or the prospect of a harsher sentence to dissuade the accused from invoking the right to counsel; Gathering arrestees into court and instructing them as a group, prior to any advice regarding right to counsel or other rights, that they must tell the clerk how they intent to plead; Using forms to [...]