CAN YOU SUE SOMEONE IF YOUR LAWYER TELLS YOU TO TAKE A PLEA BARGAIN AND KEEPS YOUR MONEY? (Unconstitutional Conditions Doctrine Applied to Criminal Law)

The “Unconstitutional Conditions Doctrine” or UCD is case law that rich people created to stop the government using money to coerce them. Suppose the government makes a political decision to spend money building houses. The government cannot require private builders only say good things in public about the Democrat party, as a condition to get the money.

UCD prevents the government from using “coercive pressure” to induce individuals to forgo their constitutional privileges.

Some of the rules, are that the government can’t withhold money, to get conduct that has nothing to do with the purpose of the money. Like political speech has nothing to do with building houses. Other considerations are whether the government demands individuals give up rights, way out of proportion to what the government reasonably needs for some legitimate purpose.

A traditional Fourth Amendment analysis might say it is reasonable for a person to consent in advance to being tested for DUI at any time, in exchange for being granted the special privilege to drive in public. If a search is reasonable, then a breathalyzer and blood test are both reasonable. A UCD analysis might say that forcing someone to consent to spend an hour being detained and driven to a hospital at any time for a blood test, as a condition of getting a driver’s license, is an unconstitutional condition. Regardless of whether there might be probable cause to do that in a given traffic stop.

The purpose of plea bargains, is mainly because courts are way short on manpower to enforce all the laws and rights the legislature passes (especially for poor people). Criminal defendants can also save themselves trouble, if they expect to be convicted anyway, and they also get something in return because the government also benefits. Few could afford to even retain a private lawyer, if every case always went to trial.

Many people sense there is something wrong with plea bargains. And they theorize that nobody has successfully cured these issues by using UCD in court, because criminal defendants are broke and lack political empathy, compared to people who win billion-dollar contracts from government. Corporations and states can afford to pay lawyers more than criminal defendants can, often with billions of dollars at stake depending on the court outcome. Private criminal defense lawyers are less zealous because they have less money, and at times advocate to their clients on behalf of the state.

But it is theorized the types of legal victories obtained based on UCD when billions are on the line, and in the areas of speech and property rights, might in theory also be available in criminal cases when your life is on the line.

UCD arguments to protect against the worst abuses of plea bargains have been proposed. For example, threatening people with crazy sentences that are rarely expected to otherwise be imposed, unless they give up their right to a trial and evidence, is a coercive “unconstitutional condition”. People argue the difference in outcome is not proportional to the need served by plea bargains (and is against the interest of justice). And by demanding you give up your right to habeas relief or other further proceedings, the government also coerces you to give up too much, beyond what is necessary or directly related to the benefit of plea bargains.

The counter-argument is that there is no “unconstitutional condition” so long as the accused is free to accept or reject the prosecution’s offer. He can still always choose to go to trial. And the longer sentence he gets was approved by the legislature. So the plea bargain is all extra icing, an additional option, extra choice, not reduced choice. This ignores the necessary role of the attorney in creating the options that are actually available to the defendants, as a practical matter.

By saying you are “putting a gun to the defendant’s head”, UCD considered for plea bargains, has focused on the coercion to the defendant (so that one might wonder why he even has the right to an attorney or needs one). But to the extent those choices are presented and advised by a lawyer, it gives the lawyer the choice to abdicate his own obligation of giving advice. It says to the lawyer “Get your client to give up his rights, or you will go broke. You are going to go broke, unless your client takes a plea bargain.” (And it coerces the lawyer with an ethical condition.)

The (competent) criminal defendant weighs his financial and other outcomes, when deciding whether to accept a plea bargain or go to trial. But the attorney faces a dominating financial cost from going to trial, and even risks to his working relationships and good will from his peers, and his reputation, that are not balanced against any benefit to him.

The biggest UCD problem in plea bargains is the coercion to the attorney, driving a wedge between the attorney and his client. This taints, impairs, and compromises the conduit through which the defendant is advised of and can obtain all his other rights.

The blindness of lawyers (academics and judges) to this basic problem of criminal procedure, results from very few of them ever being arrested, much less lied about in murder cases by police and jailhouse confession witnesses. How many academics or Supreme Court justices have defended a murder case in a state trial, or even known anyone accused of murder, much less falsely accused?

And those lawyers who have represented accused murderers who are lied about in court, financially benefit from plea bargains, and from The Bar giving them this loophole to screw their clients. Those who are most familiar with what is going on, are not going to complain about their own free money.

Suppose your lawyer’s advice to you is dominated by saying something like “You can take the plea bargain and get one year deferred sentence, or if you don’t take it you risk 10 years in prison.” Do you still have a right to a lawyer and a jury trial, if the only person who is allowed to visit you or talk to you in jail to deliver those rights has been financially compromised?

In this case, the unconstitutional condition, that lawyers can only turn a profit by getting plea bargains, has overwhelmed your right to a jury trial, and subjugated it to the interest of your lawyer to make money. Then you might sue or seek some relief, by saying the state has used its ability totally out of proportion, to violate your right to an attorney, by reducing your attorney into an arm of the government.

Plea bargains are coercing attorneys to advise their clients to give up rights. The condition that an attorney gets to keep the same amount of payment, in the case when he persuades you to accept a deal and close the case with minimal work, is an unconstitutional condition in the form of a reward or bounty for talking you out of your rights.

It is not reasonable or proportional or germane, for an attorney to get paid the same amount whether he gets a plea bargain in one call, or spends months of work defending you at trial. There is no legitimate government interest in an attorney getting paid more for doing less work, on the condition he advocates on behalf of the court and state rather than on behalf of his client.

So plea bargains coerce a decision to accept a condition that deprives you of your right, through coercion of your attorney to give up your rights.

This is similar to the violation of the Fifth Amendment, by coercing an unrelated jail inmate to swear you confessed. This is relatively riskless and painless to that person, who does not even have to make a single statement about his own criminal case. In both scenarios, they launder the coercion through a third party, an attorney or jailhouse witness, and thereby trick idiot federal courts. Or this at least obfuscates what is going on, enough to give plausible legal cover to the political decisions of federal courts.

The Bar would not allow an attorney to accept payment from me, as an uninterested third party, on the condition that his client accepts a plea bargain. But he is allowed to accept a financial benefit from the state, a party that is clearly averse to his client’s interests.

Plea bargains also give up the public’s right to evidence, and to be summoned as jurors. If a cop lies about me, and I take a plea deal rather than prove it in court, neither the public nor future defendants will ever know he lied. So the state is using plea bargains to hide misconduct from the public. This has nothing to with the stated goal of saving scarce court resources. And it is achieved by telling the attorney you will have to go to trial and your client could get 10 years instead of deferred prosecution, if you turn our cop into a Brady cop, and if you expose to the public how they risk being lied about themselves.

So it seems the most promising avenue to raise UCD in criminal court, is through the corrupting influence on your right to an attorney. But federal courts will either be dumb and say they have never seen this before, or will be political and use every trick to avoid and obfuscate your right with some fake facade of legality.

So whether you can sue your lawyer to get part of your money back if he threatens you with disproportionate prison for not taking the plea bargain, or sue the state in advance to enjoin them from corrupting your lawyer in this manner, I am not sure.