How might an “Office of Plea Integrity” be best constructed and tasked to improve our bargained system of justice?

The question in the title of this post is a riff off this great new commentary from Clark Neily that seeks to turn the many lemons of the Flynn kerfuffle into tasty criminal justice reform lemonade.  The extended piece, headlined “Department of Injustice,” is worth a read in full, and here is how it starts and closes:

While the Michael Flynn prosecution is currently imploding, no matter how it ends, the key lesson is clear: The nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  Congress should act immediately to restore public confidence in the integrity of our criminal justice system by reforming this fundamentally lawless and un-American practice.  And the Flynn case shows why that reform should be a top legislative priority….

Simply put, the reason we still have no clear understanding of precisely what Flynn did or didn’t do, and what crimes he did or didn’t commit, is because the entire case against him boils down to an in-court admission that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt, just as more than 90% of federal criminal defendants do today.  Indeed, it is hardly an exaggeration to say that criminal jury trials are nearly extinct on American soil: Some 97.4% of federal criminal convictions are obtained through plea bargains, and in some judicial circuits, it’s as high as 99%.

Recent developments in the Flynn case, including evidence that senior FBI officials engaged in shockingly inappropriate, perhaps even criminal, behavior during the Flynn investigation, give rise to a stark but crucial question: How many other guilty pleas would disintegrate as spectacularly as Flynn’s if the underlying case were subjected to the same searching review that Flynn’s finally received more than two years after the entry of his guilty plea?

Proponents of the current plea-driven system will likely counter that Flynn’s case was a politicized fluke, nothing more.  But there are good reasons to doubt that assurance. Consider the 2018 prosecution of rancher Cliven Bundy in Nevada for inciting violence against federal agents in the midst of a dispute over federal grazing land.  That case was dismissed with prejudice after the judge determined that DOJ prosecutors showed a “reckless disregard for the constitutional obligation to seek and provide evidence” by withholding documents and misstating facts about the case.  Or consider the 2008 corruption prosecution of Sen. Ted Stevens before the same judge in the Flynn case, Emmet Sullivan, during which DOJ prosecutors systematically withheld explosive exculpatory evidence that would have thoroughly gutted their case against Stevens.  Besides dismissing the charges against Stevens, an incensed Sullivan commissioned a thorough investigation of the DOJ’s misconduct in the case that culminated in a 500-page report that documents, in mind-boggling detail, prosecutors’ serial misdeeds in their corrupt attack upon a sitting senator.

Again, defenders of the current system will say those particular examples are rare, which is true — but so are trials in our plea-driven federal system, in which just 2% of cases go to trial.  If every single case went to trial with defense counsel as tenacious and aggressive as Flynn’s new team, how many of those cases might blow up as spectacularly as the Flynn, Bundy, or Stevens cases?  And if every one of those cases got the same internal tire-kicking by the DOJ that Flynn’s finally received, how many of them would simply be dismissed outright, as the DOJ now seeks to do with Flynn?

There’s no reason the latter question has to remain hypothetical, and Congress should move swiftly to ensure that it does not.  The pathologies engendered by the DOJ’s overreliance on coercive plea bargaining are too numerous and too deeply ingrained in our system to address all at once.  But something Congress can do immediately is establish within the Department of Justice an Office of Plea Integrity that would be charged with doing on a full-time basis what Jeff Jensen was brought in to do in the Flynn case, namely, pop the hood and give the whole case a searching and perhaps even skeptical review before clearing it to proceed to a guilty plea.  With upwards of 80,000 federal criminal prosecutions each year, it probably isn’t feasible to review every case, but it should not be unduly difficult to develop a system for selecting a mix of random and specially designated cases, including ones involving prosecutions of particular public interest, such as the Flynn and Stevens cases, for review.

Other reforms Congress should consider in the longer term include a statutory cap on the notorious “trial penalty,” which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.

Again, those are policies Congress may consider in the fullness of time.  But the creation of a Plea Integrity Unit within the DOJ is an obvious and urgent response to a botched high-profile prosecution that has justifiably shaken people’s faith in the competence and the integrity of the federal criminal justice system.

I love the idea of a body committed to ensuring pleas have integrity, but I am not quite sure why Clark Neily would trust the DOJ fox to review critically its favorite fat hen in its prosecutorial henhouse.  As I see it, there needs to be a body, largely independent of prosecutors, that is charged with takes a close and skeptical look at individual pleas and our entire modern bargained system of justice.

In this area, I have long been a fan of Professor Laura Appleman’s clever idea of a “plea jury” (as detailed in an article and book): “a lay panel of citizens [that] would listen to the defendant’s allocution and determine the acceptability of the plea and sentence, reinvigorating the community’s right to determine punishment for offenders.”  I do not think a “plea jury” would solve all or even most of the modern problems with modern plea practices, but it strike me as a good start.  Perhaps that case-specific innovation could be coupled with an new independent judicial-branch commission, one perhaps structurally modeled like the US Sentencing Commission, that would be tasked with gathering data and issuing guidelines on sound plea bargaining practices.

As Neily notes, more than nine of every ten convictions come from the plea process, and yet there are few rules and even less data to inform the discretion exercised by prosecutors as they pursue investigation and structure the terms of plea bargains.  Wherever located and however structured, an “Office of Plea Integrity” would not instantly improve our bargained systems of justice, but it strikes me a good place to start.