The Legal Ethics of Release-Dismissal Agreements: Theory and Practice

Abstract

The term "release-dismissal agreement" encompasses any agreement between a public prosecutor and a potential criminal defendant in which the prosecutor agrees to dismiss or reduce criminal charges in consideration for the defendant releasing a civil rights claim against the police or other government officials. Prosecutors have used such agreements for at least four decades with frequently disturbing results, but the practice has received little sustained attention in the academic literature. The one arguable exception is the gush of highly critical commentary provoked by the 1987 case of Town of Newton v. Rumery, in which a fractured Supreme Court held that release-dismissal agreements are legally enforceable under some circumstances. By 1990, however, this gush had slowed to a trickle, and by 1995, release-dismissal agreements had fallen almost completely off radar. Despite an implicit invitation from the Rumery concurrence and dissent, no commentator has ever systematically analyzed the strictures legal ethics might impose in this area, above and beyond the limitations imposed by law. This lacuna is unfortunate, since the chief legacy of Rumery (perhaps contrary to its intent) has been to substantially relax lower court scrutiny of release-dismissal agreements. There is, therefore, urgent need for a systematic ethical analysis of release-dismissal agreements, particularly one grounded in the empirical realities of contemporary prosecutorial and judicial practice. This Article provides such an analysis.

Keywords: Legal Ethics, Professional Responsibility, Civil Rights, Prosecutorial Discretion