Plea Agreements As Constitutional Contracts

87 Pages Posted: 11 Jul 2017  

Colin Miller

University of South Carolina School of Law

Date Written: July 5, 2017

Abstract

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections—the implied covenant of good faith and fair dealing—would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.

Keywords: Plea Bargaining, Contracts, Implied Covenant of Good Faith and Fair Dealing

JEL Classification: K14, K42

Suggested Citation

Miller, Colin, Plea Agreements As Constitutional Contracts (July 5, 2017). Available at SSRN: https://ssrn.com/abstract=2997499

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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