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Federal Prosecutors Routinely Uses Carrots and Sticks to “Induce” Defendants to “Support [DOJ] Policy Objectives”
The Adams Affair continues. Yesterday, I wrote about Hagan Scotten’s resignation letter. Here, I want to focus on another sentence Scotten wrote that does not quite make the point he intended:
No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.
The phrase “ordered liberty” was most famously used by Justice Cardozo in Palko v. Connecticut (1937). Provisions of the Bill of Rights were incorporated if they were “implicit in the concept of ordered liberty.” Not exactly some sort of clear, or formalist test. More like an “I know it when I see it approach” to liberty.
What comes after is far more important. Scotten would have you believe that the federal government never uses the “carrot of dismissing charges, or the stick of threatening to bring them again, to induce [a defendant] to support its policy objectives.” Notice how I changed “elected official” to “defendant.” If you make that subtle change, you realize how problematic that statement is.
The Department of Justice routinely uses carrots and sticks to make defendants support DOJ policy objectives. More than 90% of federal criminal cases end up in plea bargains. Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses. Â
In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go “undercover” as a confidential informant to obtain information about other crimes. Such covert work can place th
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