The Yale Law Journal Company, Inc. The Yale Law Journal

The Yale Law Journal Company, Inc.
Cops and Pleas: Police Officers' Influence on Plea Bargaining

Author(s): JONATHAN ABEL
Source: The Yale Law Journal, Vol. 126, No. 6 (APRIL 2017), pp. 1730-1787
Published by: The Yale Law Journal Company, Inc.
Stable URL: https://www.jstor.org/stable/44867952
Accessed: 19-02-2022 15:20 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and
extend access to The Yale Law Journal
This content downloaded from 52.66.103.4 on Sat, 19 Feb 2022 15:20:17 UTC
All use subject to https://about.jstor.org/terms
JONATHAN ABEL
Cops and Pleas:

Police Officers' Influence on Plea Bargaining
ABSTRACT. Police officers play an important, though little-understood, role in plea bargain-
ing. This Essay examines the many ways in which prosecutors and police officers consult, collab-
orate, and clash with each other over plea bargaining. Using original interviews with criminal
justice officials from around the country, this Essay explores the mechanisms of police involve-
ment in plea negotiations and the implications of this involvement for both plea bargaining and
policing. Ultimately, police influence in the arena of plea bargaining- long thought the exclusive
domain of prosecutors - calls into question basic assumptions about who controls the prosecu-
tion team.
AUTHOR. Fellow, Stanford Constitutional Law Center. I am grateful to Kim Jackson and her
colleagues at the Yale Law Journal for their invaluable suggestions. I also want to thank col-
leagues, friends, and family who read drafts and talked through the issues with me. A short list
includes Liora Abel, Greg Ablavsky, Stephanos Bibas, Jack Chin, Barbara Fried, Colleen Honigs-
berg, Cathy Hwang, Shira Levine, Michael McConnell, Sonia Moss, Howard Shneider, Robert
Weisberg, and the riders of A.C. Transit's "O" Bus.
1730
ESSAY CONTENTS
INTRODUCTION 1732
I. THE SEPARATION OF POWERS WITHIN THE PROSECUTION TEAM I735
A. Academic Accounts 1736
1. Scholarship on the Police Role in Plea Bargaining 1737
Bargaining 1743
2. Scholarship on the Separation of Powers in Plea Bargaining 1741
B. Prosecutor and Police Accounts of the Separation of Powers in Plea
II. POLICE INFLUENCE ON PLEA BARGAINING 1748

A. Formal Systems of Police Influence 1748
B. Informal Police Influence on Plea Bargaining 1754
1. Factors Leading to Police Involvement in Plea Bargaining 1755
2. Special Cases Where Police Plea Involvement Is Heightened 1759
2. Media 1764
C. Police Influence in the Face of Prosecutorial Resistance 1761
1. Police Brass and Police Unions 1762
3. Judges 1767
III. IMPLICATIONS OF POLICE INVOLVEMENT IN PLEA BARGAINING 1769
A. The Effect on Plea Bargaining 1769
1. Bad Arrests Become Bad Pleas 1770
2. Brady, Giglio, and Civil Rights Litigation 1771
3. The "Market Price" of a Guilty Plea 1773
B. The Effect on Policing 1777
conclusion 1784
C. The Effect on the Literature 1782
1731
THE YALE LAW JOURNAL 126:1730 2017
INTRODUCTION
From the opening credits of Law & Order to the pages of the United States
Reports- and in many other sources in between- descriptions of the prosecu-
tion team divide its functions into two parts. Police officers patrol the streets,
investigate cases, and make arrests. Prosecutors handle the adjudication-
dismissing charges, negotiating pleas, and taking cases to trial. In this tradi-
tional dichotomy, the police are not involved in the plea bargaining between
prosecutor and defense counsel, the most common means by which cases are
disposed. Officers' lack of involvement in plea bargaining seems to coincide
with a more general intuition that executive officials, such as police officers,
ought not take part in judicial functions, like deciding upon guilt and punish-
ment, which plea bargaining essentially does. This embrace of separation of
powers is not a mere academic or ethical construct. It describes the way many
officers and prosecutors think of their respective roles in the criminal justice
system- a system in which ninety to ninety-five percent of cases are disposed
of by plea.1 The separation of powers in plea bargaining, as one prosecutor put
it, is "an important bulwark against overreaching by police."2
Nonetheless, the power to arrest and the power to decide on guilt and pun-
ishment are far less separate in practice than they first appear, and police offic-
ers in jurisdictions around the country are actively involved in plea bargaining.
This Essay illustrates how officers have found ways to influence plea bargain-
ing, both with and without prosecutorial approval. In some jurisdictions, po-
lice play a formal role in the negotiations, meeting with the prosecution and
discussing what pleas should be offered. In other jurisdictions, prosecutors in-
sist that police not be involved at all, lest their involvement compromise the
prosecutor's independent review of the arrest and investigative work done by
the police. In still other jurisdictions, no formal policy exists regarding police
influence, so prosecutors and police officers consult in an ad hoc manner about
pleas. Officers around the country have even found ways to influence plea ne-
gotiations in the face of opposition from prosecutors. The very fact that they
play any role at all in the plea process challenges the way we think about the
balance of power and the internal politics of the prosecution team.
i. Lindsey Devers, Plea and Charge Bargaining: Research Summary, U.S. Dep't Just. 1 (2011),
http ://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf [http ://perma.cc/
2RK5-47WY] ("While there are no exact estimates of the proportion of cases that are re-
solved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal
and state court cases are resolved through this process").
2. Telephone Interview with Shannon Presby, Assistant Head Deputy, Justice Sys. Integrity
Div., L.A. Dist. Attorney's Office (Mar. 3, 2015).
1732
COPS AND PLEAS
The issue of police influence on pleas is part of a larger question about how
officers and prosecutors ought to work together. Not surprisingly, this larger
question has generated much controversy among prosecutors and police, as the
two halves of the team struggle to define whether they should stay in their own
lanes - investigation for police, adjudication for prosecutors - to avoid friction,
or whether the friction is a productive feature of institutional design that pre-
vents either side from overreaching its authority. Involve police in plea bargain-
ing? Keep them at arm's length? These are the poles of a debate for which there
are no definitive policy prescriptions, despite the implications for plea bargain-
ing and policing- implications that call into question basic aspects of how we
think about the working group of prosecutors and police, commonly known as
the "prosecution team." Despite its significance, the plea-bargaining clashes
and cooperation within the prosecution team have received little attention from
scholars, legislators, or judges. The legislature and judiciary have provided no
guidelines on how prosecutors and police officers should interact on plea nego-
tiations, so prosecutors and officers around the country remain free to fashion
any arrangement they see fit.
The lack of academic and judicial attention to police influence on pleas may
be a function of the low visibility of plea bargaining itself. Pleas do not produce
the pageantry and fanfare of trials. Although nearly all criminal cases are re-
solved through pleas, the actual negotiations that take place are not easily ob-
served because they occur behind the scenes. What back-and-forth prosecutors
and police have about plea bargaining is all the more veiled because of the pre-
mium the prosecution team places on presenting a unified front to the public.
For these and other reasons, police involvement in plea bargaining has flown
beneath the radar, despite its implications for both plea bargaining and polic-
ing.
This Essay addresses the gap in the existing literature by describing the me-
chanics and implications of police influence on plea bargaining. Using inter-
views with prosecutors, police officers, and other criminal justice officials, this
Essay provides a novel account of how police navigate the plea-bargaining sys-
tem. It also lays out implications, desirable and undesirable, that flow from po-
lice involvement in plea negotiations.
There are numerous implications for the plea-bargaining process. For ex-
ample, if officers have more influence on pleas, bad arrests may more easily be-
come bad convictions. Officer influence may also shift the "market price" for
certain plea bargains, if prosecutors and officers have systematically different
views of what a charge is worth or of the importance of resolving the case
without trial. The involvement of officers in the negotiations might also change
the way defense attorneys bargain.
1733
There are likely a number of effects on policing, as well. The obvious risk of
increasing police involvement is that it allows officers to increase the consider-
able discretion they already exercise by extending that discretion from the
street into the courtroom. But there are potential benefits, too. Involving offic-
ers in plea bargaining may reduce on-the-street abuses if it gives officers more
of a stake in building cases that are worthy of court. Some of the most harass-
ing police conduct occurs when officers act knowing full well - but not caring-
that the illegal stop, search, seizure, or use of force will scuttle any future court
case. The exclusionary remedies that are supposed to deter these Fourth and
Fifth Amendment violations, however, only matter if officers are invested in
what happens to their cases.
In addition to its practical implications, police involvement in plea bargain-
ing also poses a challenge to the current academic accounts of plea bargaining
and the prosecution team. In recent years, the prosecutor has increasingly been
described as the dominant figure in the criminal justice system, in large part
because of his dominion over plea bargaining. This Essay's account of police
involvement in plea bargaining challenges that view. It also complicates the
growing literature about the need to separate executive and judicial functions
within the prosecutor's office, for such discussion of separation of powers never
considers the ways in which police involvement in plea bargaining destabilizes
the attempts of prosecutors' offices to balance their executive and judicial func-
tions.
In a system where juries and judges decided cases, police influence on pros-
ecutors' plea decisions would not be so important. Juries and judges would
have the final say over guilt and punishment. But in our system of ubiquitous
pleas, no neutral third party reviews the prosecution team's decisions about
what plea to offer, and these offers essentially determine the defendant's guilt
and punishment. The influence officers have on this process matters precisely
because it will not be checked by any outside force. For this reason, it is critical
to understand the various systems and normative implications of police influ-
ence on plea bargaining. Indeed, the need to understand this influence is all the
more pressing because, in the present system, the influence officers exert on
pleas typically occurs in an ad hoc manner that permits arbitrariness, bias, ca-
price, and discrimination. A first step toward addressing police involvement
must certainly be transparency and intentionality about when officers choose to
get involved in a plea and when they do not.
This Essay contains three parts. Part I uses interviews with prosecutors and
police officers to describe the conventional justifications for preventing police
involvement in plea bargaining. Part I also examines the way in which the aca-
demic literature reinforces and, occasionally, challenges the separation-of-
powers conception of how the prosecution team ought to deal with pleas.
1734
COPS AND PLEAS
Part II is largely descriptive. It describes the range of systems for handling

police involvement in plea bargaining, from jurisdictions that formally include
officers in plea negotiations, to those that formally exclude them, to those that
allow police involvement in an ad hoc manner. Part II examines factors that ap-
pear to make police involvement more likely and concludes with an examina-
tion of guerrilla tactics officers use to influence pleas in the face of prosecutorial
opposition. These tactics raise structural questions about who is in charge of
the prosecution team and challenge the basic premise of how the prosecution
team is supposed to work.
Part III tackles the normative implications of greater police involvement in
plea bargaining- implications for plea bargaining, policing, and the academic
literature. What makes the question of police involvement so challenging is
that it does not reduce to easy policy prescriptions. More involvement by the
police could cure some pathologies of policing and prosecution, or it could
make those pathologies more malignant.
Because all three Parts incorporate material from interviews, a note on re-
search methods might be useful here. I conducted forty-six interviews with
criminal justice officials around the country, including prosecutors, police offic-
ers, union officials, and lawyers. The interview questions were largely open-
ended. I asked the interview subjects what role police in their jurisdictions
played in plea bargaining and how they felt about that role as a normative mat-
ter. I used a "snowballing" method to select interview subjects, asking at the
end of each interview for suggestions about the names of other people I should
contact.3 Others have written extensively about the methodological vices and
virtues of snowball sampling.4 The method was useful for illustrating the
breadth of plea-bargaining arrangements throughout the country, but its obvi-
ous downside is its inability to convey how representative any particular ar-
rangement is of the overall population. Future research might quantify how
common various plea-bargaining practices are.
I. THE SEPARATION OF POWERS WITHIN THE PROSECUTION TEAM
Police involvement in plea bargaining challenges the typical conception of

the prosecution team and forces a rethinking of what limits exist- if any- on
the way the prosecution team organizes itself. Police officers, prosecutors, and
3. Because these interviews were conducted as part of my fellowship at Stanford Law School, I
sought- and received- approval from Stanford University's Institutional Review Board.
4. E.g. , Patrick Biernacki & Dan Waldorf, Snowball Sampling: Problems and Techniques of Chain
Referral Sampling , 10 Soc. Methods & Res. 141 (1981).
1735
other criminal justice officials interviewed for this Essay spoke at length about
the division of responsibilities within the prosecution team. Repeatedly, they
stressed the importance of each actor's staying in his or her own lane. There
was no consensus, however, about why this separation was necessary. Justifica-
tions ranged from the practical to the philosophical, the petty to the high-
minded: separation of powers protects society from the overreach of the state,
reduces the logistical difficulties involved in coordinating between prosecutors
and police, decreases the potential for disagreement between police and prose-
cutors about overlapping plea-bargaining responsibilities, and preserves the
prosecutor's power over this all-important portion of her portfolio.
The academic literature has wrestled with several issues related to police in-
volvement in plea bargaining. A growing strain of scholarship discusses the
separation-of-powers problems prosecutors face because plea bargaining forces
them to employ both executive and judicial powers. The literature has also
made several interesting, if limited, attempts at understanding how officers
perceive plea bargaining. What it has not focused on, however, are the mecha-
nisms by which officers take part in plea bargaining and the normative implica-
tions that follow. Part I examines the received wisdom that officers do not play
a role in plea negotiations and the justifications for this separation-of-powers
view.
A Academic Accounts
The literature in this area is underdeveloped in several ways. Academic ac-

counts generally skip over the role that police play in plea bargaining, and
where the police role is acknowledged, it is often simplistically described as a
blanket aversion to plea bargaining. As noted above, the literature also does not
engage with the separation-of-powers issues that arise from police involvement
in deciding guilt and punishment. Although there is scholarship on the separa-
tion-of-powers implications for prosecutors, this scholarship pays no attention
to what role police play in plea bargaining. In general, legal scholarship is in-
clined to treat officers as non-entities in the plea-bargaining process, as if their
only involvement with pleas is a knee-jerk opposition. These academic ac-
counts dovetail with practitioners' descriptions5 to promote the idea that police
do not- and should not- have a role in plea bargaining.
5. See infra Section I.B.
1736
COPS AND PLEAS
i. Scholarship on the Police Role in Plea Bargaining
A healthy literature exists on the ways in which plea bargaining is influ-

enced by judges, prosecutors, victims, and defense attorneys. With a few nota-
ble exceptions, however, scholars treat the prosecutor as negotiating on behalf
of the entire prosecution team. Where officers' views on plea bargaining regis-
ter at all, it is assumed that the officers oppose the pleas. At the same time,
there is another area of research focusing on the conflicts within the prosecu-
tion team. Prosecutors and police officers have divergent institutional interests,
even though they are in most respects teammates. These divergent interests
lead to conflict about how best to handle a case. Scholars have probed these di-
visions by looking at educational, cultural, doctrinal, and even financial factors
that drive a wedge between prosecutors and police officers. Some have even
postulated different goals for the two institutions, with prosecutors prioritizing
convictions and officers prioritizing order maintenance. Are these conflicts a
sign of dysfunction within the prosecution team, or are they are a constructive
friction that keeps both sides from excess? These questions are thoroughly de-
bated in the literature without resolution.
The topic of this Essay implicates both the plea-bargaining literature and
the literature on the conflicts within the prosecution team. Unfortunately, only
a handful of works have connected these strains of scholarship to ask how po-
lice involvement in plea bargaining fits with the prosecution team's internal
conflicts.
The works that do address this issue are rather dated. In the late 1970s and
early 1990s, the National District Attorneys Association gathered basic data on
the frequency with which prosecutors consulted officers on case outcomes. In
1977, twenty-five percent of prosecutors' offices said they never consulted with
police about case outcomes.6 In 1990 and 1992, twelve and ten percent of pros-
ecutors' offices, respectively, said they did not "routinely notify" police about
dispositions.7 In other words, a minority of prosecutors seems to apply a very
strict separation of powers by never consulting officers about plea deals, while a
large majority consults at least occasionally.8 How occasionally is occasionally?
6. Patrick F. Healy, Nat'l Dist. Attorneys Ass'n, National Prosecutor Survey 116
(1977).
7. Nat'l Dist. Attorneys Ass'n, National Prosecutor Survey (1990); Nat'l Dist. Attor-
neys Ass'n, National Prosecutor Survey (1992).
8. A 1990 study of Colorado prosecutors found that ninety-six percent of chief prosecutors
routinely notified police about case dispositions. The survey claimed that the national aver-
age was ninety-three percent, citing the National Prosecutor Survey. Joan Crouch, Colo.
1737
How in-depth is the consultation? How relevant is this old data? The studies
leave much to be desired.
Case studies from the 1970s and 1980s also raised the prospect of police in-
volvement in plea bargaining. "[OJfficers report that their advice or input into
the plea negotiations is ignored," reported a study of three New Jersey coun-
ties.9 Of 316 officers surveyed, roughly fifty percent were "occasionally consult-
ed by prosecutors concerning the outcome of a plea," twenty percent were nev-
er consulted, and sixty-nine percent "were very resentful toward prosecutors
who decided on a just punishment before discussing a case with an officer."10 In
a study of Rhode Island police officers, nearly sixty percent said they "perceived
themselves as having any influence in plea bargaining," though only forty per-
cent thought the process "fair . . . to the arresting officer."11 Meanwhile, a
North Carolina study found significant variations in how often officers were
consulted, with some district attorneys' offices consulting officers in ninety-five
percent of cases and others in just twenty-five percent of cases.12 These aca-
demic accounts of police involvement further the idea that police have little in-
fluence, even when they are consulted, and that their general position is one of
opposition to plea bargaining.
The assumption that police oppose plea bargaining is reasonable enough.
Police put their lives on the line to investigate and arrest defendants, only to see
prosecutors deal away the cases for some fraction of what they could have re-
ceived at trial. It is not hard to see why this might upset officers. "A negligent
or inexperienced attorney may 'deal' a case that never should have been bar-
gained to a lesser charge," one Arizona prosecutor said.13 "As a result, months
of work by the police may have been for nothing."14 An author who embedded
in a New York police squad for a year recounted police consternation about
plea-happy prosecutors: "Over and over I heard the same complaint: 'They're
backing away from the tough ones. If they see a problem in a case, they start
Div. of Criminal Justice, Colorado Replication of the 1990 National Prosecutors

Survey 34 (1992).
9. Alan F. Arcuri, Criminal Justice: A Police Perspective , 2 Crim. Just. Rev. 15, 16 (1977).
10. Id.
ii. Alan F. Arcuri, Police Perceptions of Plea Bargaining : A Preliminary Inquiry, 1 J. Police Sci. &
Admin. 93, 95, 96 (1973).
12. Allen F. Anderson, The Police, The Prosecution, and Plea Negotiation Rates: An Exploratory
Look, 12 Crim. Just. Rev. 35, 36 (1987); see also Arcuri, supra note 9, at 38 ("The decision to
bargain is a multifarious process, and the police must be viewed as central, not simply tan-
gential, actors in this complex calculus.").
13. Moise Beger, The Case Against Plea Bargaining, 62 A.B.A. J. 621, 622 (1976).
14. Id.
1738
COPS AND PLEAS
looking for a way to get rid of it.'"15 A survey found that twenty-five percent of
officers who had negative feelings about the justice system said they would
make fewer arrests because of their concerns about plea bargaining.16 "[P]lea
bargaining Effects my decisions on the street. I become less conscientious and
less dedicated . . . and I lose the initiative to make good arrests,'" said an officer
quoted in another study.17 Indeed, officers' negative views of plea bargaining
were taken as given by many Nebraska prosecutors in another study. Nearly
half of prosecutors surveyed said "police simply dislike plea bargaining," while
twenty percent said "police grudgingly accept the practice as a necessity," the
study noted.18 The authors reported that "[n]o prosecutor in the survey gave
an answer which could be interpreted as a perception that police favored plea
negotiation."19
Anecdotal accounts have repeated the idea that officers maintain a blanket
opposition to plea bargaining. The officer's "call on the play is frequently un-
heeded" when the prosecutor has the case, one author wrote.20 "Somehow, the
respect by which the cop lives in the street evaporates when he gets downtown.
15. H. Richard Uviller, Tempered Zeal 22 (1988); see also William F. McDonald, Prosecutors,
Courts, and Police: Some Constraints on the Police Chief Executive, in Police Leadership in
America: Crisis and Opportunity 203, 204 (William A. Geller ed., 1985) ("Reiss found
that the majority of police officers surveyed in three cities believed the criminal court judges
were too lenient. Arcuri found that 60 percent of the sample of police officers felt that plea
bargain was 'unfair to the arresting officer' in the sense that it was 'disheartening' and
'makes a police officer go sour.' In a study of rape law enforcement, the Battle Memorial In-
stitute found that almost two-thirds of the police surveyed felt that 'plea bargaining should
be either changed or eliminated.' A typical newspaper article reads: '70% of CASES decided
before trial. . . . [P]olice detectives . . . charged that [plea bargaining] is too wide-
spread. . . . State's Attorney defended the amount of bargaining . . . .'" (citations omitted)).
In Rhode Island, where researchers surveyed seven percent of the police force, they found
much suspicion about their own influence over pleas: "If I know the individuals involved
and also know the circumstances, I can relay the information to the solicitor and this will
help him to decide what course of action to take," one officer explained. Arcuri, supra note 11,
at 95. "If, on the other hand, the defendant is, or has, influence, it won't make any difference
what I say." Id.
16. McDonald, supra note 15 (referring to two studies that found more than six percent of offic-
ers felt plea bargaining was unfair to them and should be eliminated).
17. Arcuri, supra note 9, at 16.
18. Fred Kray & John Berman, Plea Bargaining in Nebraska - The Prosecutors Perspective , 11
Creighton L. Rev. 94, 126 n.195 (1977).
19. Id.
20. Uviller, supra note 15, at 24.
1739
He gets the feeling that he becomes the suspect; his actions are questioned, his
tactical decisions criticized."21
According to a law-and-society account, prosecutors' consultation with

officers, when it does take place, is "more of a gesture than a serious invitation
to interfere with the equilibrium of the court . . . ,"22 Prosecutors "often attempt
to make the police feel a part of the legal process by soliciting officers' advice
about the appropriate plea or sentence."23 This feigned consultation occurs
more often and with greater intensity, the authors wrote, based upon "the
strength of professional models in the office; the social separation between
officer and prosecutors; the commitment to a due process versus crime control
mode; and political relationships between the two agencies."24 Other authors
take the position that officers are just not interested in plea bargaining. "Often
the police officers do not question the ADA's [assistant district attorney's] abil-
ity to assess the arrest and determine the disposition of the case," one scholar
found.25 "Unless the arresting officer takes a personal interest in a civilian's
complaint, he or she will not be particularly concerned about what the ADA
does with the arrest."26
The above views acknowledge some police involvement in plea bargaining,

but they do not address the factors that lead to this involvement or the mecha-
nisms through which officers assert their influence. Moreover, the literature as-
cribes a lack of sophistication to the way officers approach plea bargaining. It
assumes that officers will oppose plea bargaining in the hopes of getting the
maximum punishment possible, even though officers may actually have their
own interests in securing a guilty plea. The literature also fails to describe the
level of conflict that exists between prosecutors and police over plea bargaining.
As Part II of this Essay will show, officers actually have quite a high level of so-
phistication when it comes to plea bargaining and they have a number of levers
to pull if they want to change the prosecutor's view on a plea. The realization of
officers' influence in plea bargaining undermines the conventional wisdom
21. Id.
22. Malcolm M. Feeley & Mark H. Lazerson, Police-Prosecutor Relationships: An Interorganiza-

tional Perspective , in Empirical Theories About Courts 216, 234 (Keith O. Boyum & Lynn
Mather eds., 1983).
23. Id.
24. Id.; see abo Elizabeth A. Stanko, The Arrest Versus the Case: Some Observations on Po-
lice/ Dbtrict Attorney Interaction , 9 Urb. Life 395, 402 (1981).
25. Stanko, supra note 24.

26. Id. at 403.
1740
COPS AND PLEAS
about their lack of involvement and requires a rethinking of many assumptions

about the way the prosecution team works.
2. Scholarship on the Separation of Powers in Plea Bargaining
Apart from the literature on police involvement in plea bargaining, scholars

have recently taken to examining the separation-of-powers challenges that face
prosecutors, who now operate in a system where almost all cases are resolved
by plea bargaining. One of the leading scholars in this area has argued that
principles from administrative law should be imported into criminal procedure
to prevent the same person from wielding both executive and judicial powers.
"[Individuals who make investigative and advocacy decisions should be sepa-
rated from those who make adjudicative decisions," her article argued, "the lat-
ter of which should be defined to include some of the most important prosecu-
torial decisions today, including . . . the acceptance of pleas."27 The concern
motivating this literature is that a prosecutor who is involved in working up a
case will not be able to objectively assess the defendant's guilt or the appropri-
ate punishment, even though this assessment of guilt and punishment is pre-
cisely what the prosecutor is called upon to do in deciding on a plea.
Scholars of this separation-of-powers issue worry that tunnel vision and bi-
as might attach at an early stage of a case and the prosecutor, in her quasi-
judicial role of signing off on pleas, would not be able to make a fair decision
on the merits of the case.28 Related to this concern about tunnel vision is the
fear that prosecutors in their executive-branch functions - supervising investi-
gations and working up criminal charges - might be exposed to facts about the
defendant that are not strictly relevant to the case, yet might color the decisions
27. Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administra-
tive Law , 61 Stan. L. Rev. 869, 874 (2009) [hereinafter Barkow, Institutional Design and the
Policing of Prosecutors]; see abo Rachel E. Barkow, Separation of Powers and the Criminal Law ,
58 Stan. L. Rev. 989 (2006) [hereinafter Barkow, Separation of Powers and the Criminal Law]
(noting that courts have failed to apply the separation-of-powers approach from administra-
tive matters to criminal matters); Gerard E. Lynch, Our Adminbtrative System of Criminal
Justice , 66 Fordham L. Rev. 2117 (1998) (drawing similarities between American plea bar-
gaining and the civil-law inquisitorial model) ; Ronald Wright & Marc Miller, Honesty and
Opacity in Charge Bargains , 55 Stan. L. Rev. 1409 (2003) (praising the New Orleans District
Attorney's adoption of what the authors saw as a more transparent and less discretionary
approach to decision making).
28. Barkow, Institutional Design and the Policing of Prosecutors , supra note 27, at 896
("[PJrosecutors who have helped call the shots in an investigation will be hard pressed to re-
tain their magisterial perspective not just about the tactics used in the investigation, but
about whether charges should be pursued thereafter." (quoting Daniel Richman, Prosecutors
and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 803 (2003))).
1741
they have to make in their quasi-judicial roles. These scholars have gone as far
as suggesting firewalls that would prevent prosecutors from taking on adjudi-
cative responsibilities in cases in which their independence had been compro-
mised by involvement in the investigation or workup of the case. For example,
the literature suggests keeping the prosecutors who sign off on plea decisions -
the judicial power- insulated from all facts of the case other than those strictly
relevant to proving the elements of the crime. "The fundamental aim," the
leading author explained, "is to prevent people who develop a will to win or
who will be exposed to legally irrelevant information about a defendant from
making key determinations about the defendant's guilt and what punishment
he or she deserves."29
This literature is relevant to the topic of this Essay in two ways. First, if
officers do have influence over plea bargaining, as Part II will argue, then the
concerns about prosecutors' mixing executive and judicial powers will be appli-
cable to police as well. Second, assuming that officers have influence over plea
bargaining, then the separation-of-powers conundrum for prosecutors is even
more complex than previously thought. Even if scholars and practitioners
could develop a perfect firewall to prevent prosecutors from improperly mixing
their executive and judicial powers, there would still be the problem of police
interference with this carefully calibrated system. With their involvement in
plea bargaining, officers - the consummate executive-branch officials - could
upend the delicate equilibrium that separation-of-powers advocates would like
to construct.
Similarly, scholars have argued that the best way to control prosecutorial
misconduct is by centralizing and normalizing decision making within the
prosecutor's office so that each prosecutor transacts business on terms con-
sistent with those of his prosecutorial colleagues. But, again, even if all the
prosecutors in an office could perfectly synchronize their negotiation methods,
the problem remains that officers can still come in and exert their influence in
some cases but not others. This would upend attempts to standardize prosecu-
torial practices, thus frustrating the goal of checking prosecutorial behavior.
These implications are discussed in more depth later in the Essay.
29. Id. at 897; see also id. at 901 ("Neither the Assistant U.S. Attorney (AUSA) responsible for
investigating or overseeing the investigation of a case or for representing the United States
in court (either at trial or in pretrial proceedings) nor any individual who has directly super-
vised the AUSA in the investigation or courtroom decisions should be the same individual
who makes the final determination of what charges to bring, what plea to accept, or whether
an individual has cooperated sufficiently to merit a lesser sentence on the basis of giving
substantial assistance to the government. Rather, a different prosecutor or panel of prosecu-
tors who were not involved in the investigation (as either a line attorney or a supervisor)
should make these adjudicative decisions." (footnote omitted)).
1742
COPS AND PLEAS
B. Prosecutor and Police Accounts of the Separation of Powers in Plea

Bargaining
Legislators and courts have provided no guidance about how independent

the prosecutor's plea decisions should be from police influence. Indeed, these
bodies have essentially placed no constraints on the prosecutor's control over
plea bargaining.30 In the absence of such guidance or constraints, prosecutors
and police officers have answered for themselves the question about the separa-
tion of powers, based on their own intuitions of what justice requires. In inter-
views for this Essay, I asked criminal justice officials around the country about
what they thought the rule on police involvement ought to be. A number of
officers and prosecutors expressed support for the idea that police officers and
prosecutors ought to stay in their own lanes when it comes to plea bargaining.
The individuals I interviewed offered justifications for the conventional separa-
tion of powers, which included the need to protect against the overreach of the
state, the need to preserve structural safeguards in the court system, the logisti-
cal concerns involved in coordinating between prosecutor and officer in nu-
merous cases, and the differing institutional competencies of the prosecution
and police.
One common theme was to refer to the separation of powers as protection
against the overreach of the state. "[I]t is kind of when the rubber meets the
road in terms of civil society and the police being under control of a democratic
society," said Shannon Presby, a deputy district attorney in Los Angeles.31 "The
decision [on plea bargaining] should be made by the individuals who are con-
stitutionally mandated to make those decisions, which are the district attorney
and her representatives .... If you don't like what the DA is doing, then elect a
new DA."32 Presby called it "an important bulwark against overreaching by po-
lice that there has to be a vetting [of] the investigations by an individual from a
separate agency that's not within the chain of command of the police depart-
ment."33 "At the end of the day," he said, "the arrest is not the judgment of soci-
30. See , e.g., Barkow, Separation of Powers and the Criminal Law , supra note 27, at 1025 ("The Su-
preme Court is of the view that a prosecutor's charging and plea bargaining decisions are
largely off limits from judicial review.") ; id. at 1025-26 (citing United States v. Armstrong,
517 U.S. 456, 464 (1996); Hill v. Lockhart, 474 U.S. 52, 56 (1985); and Wayte v. United
States, 470 U.S. 598, 608 (1985)).
31. Telephone Interview with Shannon Presby, supra note 2.
32. Id.
33. Id.
1743
ety about a criminal wrong, it is the conviction that is the judgment."34 Like-
wise, Megan Frederick, the elected prosecutor of Virginia's Culpepper County,
vehemently opposes any input from police on plea bargaining, especially input
from narcotics officers. "I just don't take their opinion. I don't ask for [it]. I
don't encourage it. I probably discourage it if anything," Frederick said. "I don't
think they can make an unbiased decision."35 Indiana Magistrate Graham Po-
tando, a former prosecutor, wrote in an e-mail: "I generally thought it inappro-
priate for a police officer to suggest a possible plea offer, and it rarely, if ever,
occurred. However, I did occasionally have police officers get very (very) upset
with what they perceived as a too-lenient agreement after it was entered, even
on what were comparatively minor cases (like traffic tickets)."36
Another principled justification for the separation of powers was described
by Beth Murano, an attorney for the Lee's Summit Police Department in Mis-
souri, herself a former prosecutor. Police involvement in plea bargaining,
Murano feared, could short-circuit structural safeguards of the justice system.
From arrest through to conviction, Murano sees the justice system as a series of
stages in which different actors- police, prosecutor, jury, and judge - each have
an opportunity to exercise discretion by letting the defendant off in the interest
of justice. Police influence on plea bargaining, however, collapses two of these
stages into one.37 "[Prosecutors] need to be able to independently use that dis-
cretion regardless of what happened before [the case] came to them," Murano
said.38 "[Y]ou [as a prosecutor] don't become too close to a police officer's case
and their actions so that you can look at it independently."39
Not only prosecutors, but also police officers support the idea of separation
of powers in plea bargaining. Officers emphasized the importance of this divi-
sion of responsibility, even if there were sometimes exceptions where police in-
put was appropriate. "Sometimes it comes down to people need to stay in their
34. Id. ; see also McDonald, supra note 15, at 211 ("Rather than seeking philosophical unity within
the system as some advocates of better cooperation have suggested, police executives should
recognize that these philosophical discontinuities are one of the system's strengths. They re-
flect the normative inconsistencies of the larger society and mitigate the power of any group
to impose its special morality on others." (citations omitted)).
35. Telephone Interview with Megan Frederick, Commonwealth Attorney, Culpepper Cty., Va.
(Feb. 19, 2015).
36. E-mail from Graham Polando, Magistrate, St. Joseph Cty., Ind. Prob. Court, to author (Jan.
7, 2015, 2:38 PM PDT) (on file with author).
37. Telephone Interview with Beth Murano, Police Legal Advisor, Lee's Summit, Mo., & Former
Prosecutor, Kansas City, Mo. (Mar. 26, 2015).
38. Id.
39. Id.
1744
COPS AND PLEAS
lanes," said police Major Cam Selvey of the Charlotte-Mecklenburg Police De-
partment.40 In cases where he disagreed with the prosecutor's plea decision,
Selvey said he would "plead my point with the district attorney, but that is
their job, because I'm not the one who has to stand up and try the case. Their
perspective is from experience in a courtroom, in a trial setting, trying to sway
the jury and the judges. My perspective is gathering probable cause and mak-
ing an arrest."41
Charles Huth, a police captain in Kansas City, said he saw value in the
officers' telling the prosecutor information that might, in "the spirit of justice,"
inform the plea decision, but he saw significant risks in police involvement.42
"I'm a constitutionalist," he said. "[A]ny time we have one body that has au-
tonomy over making decisions, I think groupthink creeps in."43 Ashby Ray, an
attorney for the Raleigh Police Department in North Carolina, tells his officers
not to "interfere" with the plea-bargaining process. "Our job is to go out and
investigate crimes, gather facts," Ray said.44 "The prosecution side of things
handles their job."45 He explained that the district attorney "needs to play in
her playpen and we need to play in our playpen .... It doesn't mean that they
need to get overinvested and get bent out of shape if the prosecutor decides to
dismiss the case."46 Dan Pearce, a homicide detective in the San Diego Sheriff's
Department, said that on the occasions when prosecutors do consult him about
pleas, his "normal response is: T really don't care.'"47 Pearce added: "Some of
the guys, they want the death penalty on every case. For me, it's totally the
40. Telephone Interview with Cam Selvey, Major, Criminal Div., Charlotte-Mecklenburg Police
Dep't (Feb. 27, 2015).
41. Id.
42. Telephone Interview with Charles Huth, Captain, Kansas City, Mo. Police Dep't (Mar. 5,
2015).
43. Id.
44. Telephone Interview with Ashby Ray, Police Attorney, Raleigh, N.C. Police Dep't (Feb. 19,
2015).
45. Id.
46. Id. ; see also Sugarmaris Arrest Ended Interrogation , Citizen, June 10, 1988 (quoting a New
York State police officer saying: "I don't think the job of the prosecutor includes consulting
us.").
47. Telephone Interview with Dan Pearce, Sergeant, San Diego Cty. Sheriff's Dep't (Mar. 17,
2015) ("I think I've only had one attorney who pled somebody out on a homicide who didn't
let know us know they were pleading out- didn't tell the victim's family. We all found out
through news report and that's just tacky. You don't owe me anything . . . but you at least
owe the victim's family, especially when it's a loved one that gets killed. That's just bad ju-
ju.").
1745
prosecutor's role, what they decide is totally up to them."48 Pearce's colleague,

homicide detective Troy DuGal, said he is rarely approached by prosecutors
about pleas. When he is, DuGal explained, "it's really the DA going, 'We're just
going to run this by you.'"49
In Texas, Mike Rickman, the general counsel for the state's largest police
officer association, sounded a deferential note toward prosecutors when it
comes to plea decisions - a sentiment shared by a number of other law en-
forcement officers. "Everybody's got to remember what their jobs are and the
prosecutor, if they're diligent - and I believe they are - they get the best plea
they can get or go to trial," said Rickman, a former law enforcement officer.50
"[OJur job is to work together," said Mike Whalen, the retired police chief of
the Dennis Police Department in Massachusetts.51 "And if there is a reason why
the district attorney or one of the special district attorneys thinks the case
should be settled out, 9.9 times out of 10, 1 think the officers and I are going to
not oppose that."52 Whalen added, "The only time the officer should lobby
[is] ... if he thinks that the plea bargain is being done for reason [s] that aren't
appropriate. Probably the most inappropriate reason is because the guy's got a
hook with the DA's office or knows somebody."53
In addition to the constitutional motivations, the separation-of-powers ap-
proach to officer involvement in plea bargaining may be appealing for a num-
ber of other reasons. Some involve practical workplace politics. An officer who
picks a fight with a prosecutor over plea bargaining is liable to create headaches
for his own superiors and their supervisory counterparts in the prosecutor's
office. Officers eager not to cause trouble at work may see staying out of plea
bargaining as a prudential rule for getting along in the workplace.54 Perhaps
48. Id.
49. Telephone Interview with Troy DuGal, Detective, San Diego Cty. Sheriff's Dep't (Mar.
2015).
50. Telephone Interview with Mike Rickman, Gen. Counsel, Combined Law Enf 't Ass'ns of Tex.
(Feb. 27, 2015).
51. Telephone Interview with Mike Whalen, Police Chief (Retired), Dennis Police Dep't, Mass.
(Jan. 9, 2015).
52. Id.
53. Id. ; see, e.g., James E. Bond, Plea Bargaining in North Carolina , 54 N.C. L. Rev. 823, 833
(1976) ("Most North Carolina prosecutors, like their counterparts elsewhere, have not re-
duced their plea bargaining practices to written policies, and most do not wish to formalize
their practices in that manner.").
54. Pearce, a detective in San Diego, was practical about it: would he want to do something that
would risk a row not only with the prosecutor but also with his own police department?
"Probably not really good for my career," he said. Telephone Interview with Dan Pearce, su-
pra note 47.
1746
COPS AND PLEAS
counterintuitively, the separation of powers may also lend an air of unity to the
prosecution team by limiting potential areas of disagreement that could arise if
prosecutors and police officers had overlapping authority over plea bargaining.
"To the extent we can offer a unified front in the public eye, certainly it's bet-
ter," said Huth.55 "I think disagreement is healthy and dialogue is healthy to the
extent that we can keep it internal in the criminal justice system."56
Other justifications for the separation of powers involve logistics. Prosecu-
tor-police consultation on tens of thousands of cases might be too time con-
suming. Rather than agonizing over which cases to consult on and which to
decide without consultation, the separation of powers provides an easily ad-
minis trable default rule: prosecutors need not consult officers about pleas. A
more selfish motivation for keeping officers out of plea bargaining is prosecu-
tors' desire to hold on to more of their power. Adherence to the separation of
powers allows them to do that.57 "Plenty of prosecutors don't want another
voice at the table . . . especially one who is invested or over-invested in the
facts," said Kristen Beedle, an attorney for the San Diego Sheriff's Department
and a former prosecutor. "Just in their own interest they wouldn't want to
bring another person to the party because that person comes with their own set
of rules and connections to the facts."58
Comparative institutional competence provides yet another justification for

the separation of powers. Prosecutors have legal skills and court experience that
better position them to anticipate what a case is worth.59 Thus, the intuition
goes, it only makes sense that they would be the ones assessing the proper pun-
ishment for the case. But maybe this intuition does not make sense. Part III
takes up this issue in more detail. Regardless, officers and prosecutors repeat-
edly emphasized in interviews the distinction in the way the two groups think
about cases. Police think in terms of "probable cause" (the standard for arrest),
while prosecutors think in terms of "reasonable doubt" (the standard for con-
viction).60 For many, this distinction was a significant reason why prosecutors,
not officers, should control plea bargaining.
55. Telephone Interview with Charles Huth, supra note 42.

56. Id.
57. Telephone Interview with Kristen Beedle, Legal Advisor, San Diego Sheriff's Dep't & For-
mer Senior Deputy City Attorney, City of San Diego (Feb. 5, 2015).
58. Id.
59. Id.
60. See, e.g., id. ("Law enforcement's burden is reasonable suspicion and probable cause. And
[prosecutors'] burden is beyond a reasonable doubt. There are many cases where they are
far from each [other]."); Telephone Interview with Steadman Stahl, Sergeant, Miami-Dade
Police Dep't, & Exec. Vice President, Police Benevolent Ass'n, Dade Cty. (Mar. 25, 2015)
1747
What emerges from interviews with practitioners is a general consensus

that plea bargaining ought to be free from police influence, but no consensus as
to why. Criminal justice officials trot out constitutional, logistical, and political
explanations all leading to the same conventional wisdom about the role of po-
lice in plea bargaining.
II. POLICE INFLUENCE ON PLEA BARGAINING
Part I showed the range of justifications that have arisen for police non-
involvement in pleas. Despite the justifications for separation between prosecu-
tors and police in plea bargaining, the on-the-ground practice of plea bargain-
ing in many jurisdictions does not reflect such separation. Around the country,
police officers have found a variety of ways to assert their influence over plea
negotiations. This Part examines the formal systems that facilitate police input
on plea bargaining, as well as the formal systems that forbid this influence.
This Part also looks at the ad hoc manner in which many prosecutors and po-
lice officers handle the issue of police involvement in plea bargaining. This Part
concludes by examining the situations in which officers are most likely to be
consulted and the mechanisms used to pressure prosecutors when officers dis-
agree with their assessment of a case. This Part is not only about the internal
dynamics of plea bargaining, but also about the larger question of who is in
charge of the prosecution team.
A. Formal Systems of Police Influence
The poster child for formal systems of police influence is Charlotte, North
Carolina. Prosecutors in Charlotte hold a roundtable discussion in every homi-
cide case to decide on what plea, if any, to offer.61 Roughly five years ago, the
district attorney's office started inviting detectives to participate in the discus-
("The officer, all he needs is the probable cause. Prosecutor needs to be beyond [a] reasona-
ble doubt. And what I needed to make that arrest is a lot less than what the prosecutor needs
to prosecute the case."); Telephone Interview with Cam Selvey, supra note 40 (w[T]hey have
obviously a higher standard. They have a different standard they bring to the table in terms
of making a successful prosecution, and probable cause may not always bring you to a suc-
cessful prosecution.").
61. Telephone Interview with William T. S tetzer, Assistant Dist. Attorney, Dist. Attorney's
Office for the 26th Prosecutorial Dist., Mecklenburg Cty., N.C. (Feb. 25, 2015). In only five
percent of the cases do defendants not receive a plea offer of any sort. Id. A further descrip-
tion of the system can be seen in Stetzer's article on the topic. William T. Stetzer, A Collabo-
rative Approach to Plea Offers , Police Chief, Apr. 2014, at 26, http://www.policechief
magazine.org/a-collaborative-approach-to-plea-offers [http ://perma.cc/GGU4-4RUR] .
1748
COPS AND PLEAS
sions.62 The detectives, accompanied by members of the police chain of com-

mand, weigh in on what they think the case is worth. It is a formal opportunity
to participate in plea bargaining, and it is a model for the active role officers
could play in the negotiation process.
In Charlotte, the inclusion of the police in plea deliberations was designed
to address a recurring conflict between prosecutors and police, a conflict that
had grown acute under a prior district attorney's regime. Previously, prosecu-
tors and police were at each other's throats, publicly blaming each other for set-
tling too many cases too cheaply.63 Police blamed prosecutors for pleading out
murder cases that could have received stiffer penalties at trial, and claimed
these lenient plea agreements were making it harder to enforce the law on the
street.64 Prosecutors replied that the cases could not go to trial because the po-
lice had performed such shoddy investigative work.65 Both sides agreed that
the plea-bargaining process was out of control, but each saw the other as the
cause. When a new district attorney was elected, the inclusion of the police in
the plea discussions was one of the reforms aimed at healing the wounds with-
in the prosecution team. The new system of consulting officers on homicide
pleas eased officers' concerns by giving them a greater sense of control over the
fate of their cases, while simultaneously showing them the reasoning prosecu-
tors were using to decide on the plea offer.66 "The reason we decided to invite
police," explained William Stetzer, the prosecutor in charge of the roundtable,
"was just sort of a natural tendency of the relationship between prosecutors
and police. We realized that they didn't have a lot of idea[s] about [the] deci-
sion to make a plea offer."67 Stetzer thought police "consider [ed] plea offers
generally bad," but his experience at the roundtable has shown him their will-
ingness to settle even the most serious cases.68
62. Telephone Interview with William T. Stetzer, supra note 61.

63. See, e.g., Jonathan Reed, Settling in with Chief Monroe, Charlotte Wkly., Sept. 26, 2008, at
1; Comment Hints at Tensions Between Us, WCNC (Nov. 1, 2009), http://www.wcnc
.com/ news/local/comment-hints-at-tension-between-da-and-new-chief/ 374761446 [http :/ /
perma.cc/8J36-FD7A]; Jeff Taylor, Gilchrist vs. Monroe, Locker Room (July 8,
2008) , http : / /lockerroom. johnlocke. org/ 2008/07/ 08/ gilchrist-vs-monroe [http : / /permaxc
/4MGM-N6FU].
64. Telephone Interview with Andy Leonard, Major (Retired), Charlotte Mecklenburg Police
Dep't (Mar. 3, 2015); Telephone Interview with Cam Selvey, supra note 40.
65. Telephone Interview with Andy Leonard, supra note 64.
66. The group has heard more than 200 homicide cases, and made offers in about ninety-five
percent of the cases. Pleas were accepted in about seventy percent of them. Id.
68. Id.
1749
For their part, police praise the roundtable model. Prior to the roundtable,
officers "were not aware what had happened in our case until we got a letter
saying the case had been dismissed," explained retired police Major Andy Leon-
ard.69 The only time detectives were involved in negotiations, he said, was
when prosecutors needed bodyguards to protect them from victims' family
members, who were likely to be upset upon hearing from prosecutors about
the proposed plea. "Now that we've been involved in the process," Leonard
said, "we're really not sitting down with the families anymore as security [for
the attorneys]. We're sitting down with the family as advocates for the district
attorney- as advocates for the concessions they're making."70 Major Cam
Selvey emphasized a new feeling of empowerment among officers because of
their role in plea negotiations. In the past, "[w]e turned it over to the DA. They
did whatever. We would just shrug our shoulders and say, 'Oh well, we
tried.' . . . [W]hen we would mouth off too much, they would come back and
say, ťYou handed us a crap case.'"71 Now, police officers have a forum to talk
constructively to prosecutors about pleas.72
Other jurisdictions, too, have employed formal methods for soliciting po-
lice input.73 In Miami, prosecutors ask officers to indicate on the arrest paper-
69. Telephone Interview with Andy Leonard, supra note 64.

70. Id.
71. Telephone Interview with Cam Selvey, supra note 40.

72. Prosecutors and police in Vance County, North Carolina, have adopted this collaborative
system. Sarah Mansur, 'A Proactive Approach ': DA Office Uses New, Inclusive Approach in Deal-
ing with Homicide Case Backlog , Henderson Dispatch (Jan. 30, 2016), http://www.hen
dersondispatch.com/news/a-proactive-approach/article_67d70eae-c78c-ue5-9554-b3cb84d
345e9.html [http://perma.cc/GHP9-WE2M]. Stetzer identified the Manhattan District At-
torney's Office as an example of another jurisdiction interested in using a collaborative sys-
tem. Even outside of the homicide context, according to Stetzer, "[i]t is expected that ADAs
when they're negotiating cases should at least talk to detectives and investigate the case."
Telephone Interview with William Stetzer, supra note 61. The roundtables dealing with plea
bargains are reminiscent of the "charge conferences" that are organized in some jurisdictions
to bring prosecutors and police together to discuss whether to charge a particular case and
with what. Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 Stan. L.
Rev. 29, 64 (2002) ("For the most serious crimes, including rape and homicide, the office
conducts 'charge conferences' with senior prosecutors and police present to discuss the facts
and potential charges.").
73. In recent decades, as plea bargaining has become more prevalent, the commitment to dis-
cuss all plea negotiations with the police has come to require much more effort. The follow-
ing quotation from a Florida district attorney in 1977 gives some glimpse of the reluctance to
plea bargain, which once existed, but no longer does: "We do not negotiate serious crimes in
our circuit unless it follows certain strictures. If a [g]un is involved, it will not be negotiated
unless under extremely special circumstances, and then only if it's assured that some prison
time is involved. If a negotiation is entered into on a serious crime, it's the policy of this
1750
COPS AND PLEAS
work whether defendants should be sentenced according to the guidelines or

whether a non-guidelines punishment is appropriate.74 Cristina Escobar, a
former prosecutor in Miami, said, "The officer's position on a plea bargain . . . ,
at least in Miami-Dade County, is always taken into account."75 Where the
officer has spent a lot of time investigating a case, "you've got to take their
opinions more seriously," Escobar said.76 Similarly, in Hillsborough County,
Florida, the prosecutor's office has a policy of consulting with the police about
plea bargaining in any case in which the officer has expressed a "sincere inter-
est" about the outcome.77 Laurie Woodham, an attorney for the Tampa Police
Department, explained how the policy is sometimes more honored in the
breach, as when prosecutors have attempted to hide a plea they knew the police
opposed.78 Such was the case, Woodham said, when a city employee was
caught using a city van to trawl for foster kids to molest: "[The prosecutor]
didn't contact us until after the plea because they knew we would object."79
From Nevada to Virginia, police officers described prosecutorial policies for
consulting officers about pleas. "The former district attorney had a rule that
you didn't plea out a case unless the cop said it was okay," said Chris Collins, a
Las Vegas police officer, who recently served as executive director of the Las
Vegas Police Protective Association.80 Similarly, the policy in Virginia's Henrico
County is for prosecutors to check with officers in all cases before offering a
plea. "Usually when I do the agreement," prosecutor Elsa Seidel said, "I'll tell
the defense attorney, Til check with the officer and I'm pretty sure he won't
have a problem with it, but I do need to check with him first.'"81 Fellow Henri-
office to consult with the victim, parent, or kinfolk, to consult with police officers involved;
and to be assured that if the plea is negotiated, it has the acceptance of the community."
Ruth Drachmann, Blair Calls Plea Bargaining "Necessary Evil" St. Petersburg Times, May
14, 1975-
74. Telephone Interview with Steadman Stahl, supra note 60.

75. Telephone Interview with Cristina Escobar, Staff Counsel, Police Benevolent Ass'n of Dade
Cty. (Mar. 26, 2015).
76. Id.
77. E-mail from Laurie Woodham, Legal Advisor, Tampa Police Dep't, to author (Jan. 6, 2015,
1:42 PM PDT) (on file with author).
78. Id.
79. Id. ; see abo Panel Discussion, Plea Bargaining from the Criminal Lawyer's Perspective : Plea Bar-
gaining in Wbconsin, 91 Marq. L. Rev. 357, 364 (2007) (describing how a prosecutor waited
for a pre-trial hearing where the officer was not present before offering a plea deal).
80. Telephone Interview with Chris Collins, Detective, Las Vegas Metro. Police Dep't, & Exec.
Dir., Las Vegas Police Protective Ass'n (Mar. 2, 2015).
81. Telephone Interview with Elsa Seidel, Prosecutor, Henrico Cty. Commonwealth's Attorney's
Office (Mar. 16, 2015).
1751
co County prosecutor Mike Feinmel said he would "never make a deal without
talking to a police officer first. 'Hey, I want your input. Tell me what you think.'
One hundred percent of the time they'll say, T trust your judgment,"' Feinmel
noted.82 "They don't have a veto, it's ultimately my decision, but I will always
engage in a dialogue with the officer."83 Likewise, Virginia Beach prosecutors
have employed a policy that requires them "to discuss any plea with the prima-
ry case officer before entering into an agreement with defense counsel," wrote
Lyla M. Zeidan, a former prosecutor who now teaches at the Northern Virginia
Criminal Justice Training Academy.84 "It was not required that we got their ap-
proval, but we had to discuss it with them and inform them of the plea and
give the officer the opportunity to share his/her comments [with] us."85
Nor are prosecutors the only prosecution-team members to promote formal
systems of police influence. Some police departments actively encourage their
officers to get involved in plea bargaining. For example, the Fairmont Police
Department in Minnesota lists "plea bargain agreement consultation with
prosecutor" among the duties of the detective.86 In Massachusetts, the Dennis
Police Department posts an officer at the courthouse to alert the police chief
when a case is pled out too cheaply. "It was the only way to keep an eye out on
things," explained Mike Whalen, the retired police chief.87 "[Be] cause they see
every case that comes through, they know who the frequent flyers are ... .
They may go to the prosecutor and say, 'I'd rather not see this case plea bar-
gained].'"88 If the case is important enough, Whalen said, the police chief is
notified and he may complain directly to the head of the prosecutor's office.89
In Peoria County, Illinois, a police officer is stationed at the prosecutor's office,
82. Telephone Interview with Mike Feinmel, Prosecutor, Henrico Cty. Commonwealth's Attor-
ney's Office (Mar. 24, 2015).
83. Id.
84. E-mail from Lyla M. Zeidan, Legal Instructor, N. Va. Criminal Justice Training Acad. &
Former Assistant Commonwealth Attorney for Va. Beach, to author (Jan. 9, 2015, 7:46 AM
PDT) (on file with author). Zeidan notes that police academies do not discuss the role of
officers in plea bargaining. Norfolk, Virginia, was identified as another jurisdiction where
"the police have worked out an agreement with the prosecutor to consult them before dis-
missing or negotiating a case." McDonald, supra note 15, at 215 n.18.
85. E-mail from Lyla M. Zeidan, supra note 84.
86. Fairmont Police Detective, Fairmont Police Dep't (2015), http://fairmontpolice.org/about
/positions/detectives [http://perma.cc/E5WR-F97P] .
87. Telephone Interview with Mike Whalen, supra note 51. Other New England police agencies
do the same.
88. Id.
89. Id.
1752
COPS AND PLEAS
rather than the courthouse, to act as a liaison between prosecutors and police.90
In other jurisdictions, prosecutors are stationed at police headquarters to serve
as liaisons between the two halves of the prosecution team. The goal of these
liaisons is to address prosecution- team frictions, including those arising from
plea bargaining.91 "I'm able to call the chief [prosecutor] and say, 'Your baby
DA [is messing up],"' said Damon Mosler, a prosecutor assigned to the San Di-
ego County Sheriff's Department.92 Mosler explained that the detectives can
become very upset about bad plea decisions, and he tries to address their con-
cerns through back channels.93
Sometimes police officers enlist the help of third parties, such as judges or
state attorneys general, to give them formal influence over plea bargaining. In
1978, the police union in Detroit, Michigan, pressed local judges to adopt a pol-
icy of not accepting plea deals unless the police had been consulted.94 In the
1980s, a police union in Toledo, Ohio, filed a complaint with the attorney gen-
eral demanding that Ohio prosecutors be prevented from agreeing to any plea
without first getting the sign-off of the arresting officer. "In some jurisdictions
plea bargains cannot be submitted to the judge unless the police have been at
least consulted about," if not asked to approve, the terms of the plea, according
to a 1982 national study of police-prosecutor relations.95 These attempts to
force prosecutors to consult with police suggest the depth of police interest in
influencing the process.
While the jurisdictions discussed above used formal systems to facilitate
police involvement in plea bargaining, others have employed formal systems to
suppress police influence. The Buffalo Police Department provides one exam-
ple, as noted in a law review article from 1977: "[T]he Buffalo Police Depart-
90. Telephone Interview with Sean Smoot, Dir. & Chief Legal Counsel, 111. Police Benevolent &
Protective Ass'n & Treasurer, Naťl Ass 'n of Police Orgs. (Mar. 16, 2015).
91. Wojciech Cebulak, Fairness , Job Frustration , and Moral Dilemmas in Policing that Impact Police
Effectiveness , 16 J. Police & Crim. Psychol. 48, 53 (2001) (noting the particularly American
quality of the division within the prosecution team: "In Denmark, for example, police are
much less likely than United States police to be frustrated with the prosecutor's refusal to
charge a suspect in situations where the police have done a great job in making an arrest.
That is because, in Denmark, even in major cases which belong to the regional prosecutor's
domain, it is the police chief who usually argues the case in court and the decision to initiate
criminal proceedings or not ultimately rests with police chiefs." (citation omitted)).
92. Telephone Interview with Damon Mosler, Deputy Dist. Attorney, San Diego Cty. Dist. At-
torney's Office (Mar. 16, 2015).
93. Id.
94. McDonald, supra note 15, at 210.

95. William F. McDonald, U.S. Dep't. of Justice, Nat'l Inst, of Justice, Police-
Prosecutor Relations in the United States: Executive Summary 26 (1982).
1753
ment regulations mandate that an officer shall not 'recommend, approve, nor
actively consent to, the reduction or changing of a charge against a prisoner.'"
"When asked his opinion of a reduced plea, the officer's response must be that
'he cannot participate in "plea bargaining" and to do so would be a violation of
departmental rules,"' the study reported96 Such self-imposed bans on all types
of plea bargaining appear rare, but a number of police departments have
adopted policies preventing police participation in plea bargaining for particu-
lar types of cases, such as traffic offenses.97 Some prosecutors' offices have also
imposed bans on police involvement in plea bargaining, consistent with their
belief in the separation of powers and its many iterations. As noted earlier, the
National District Attorneys Association's surveys found between ten and twen-
ty-five percent of prosecutors never consulted- or, at least, did not routinely
consult- officers about plea bargaining.98
B. Informal Police Influence on Plea Bargaining
In many jurisdictions - likely, the majority- there are no formal rules about
when prosecutors should consult with officers about pleas. Instead, the juris-
dictions employ ad hoc arrangements whereby a prosecutor may occasionally
check with an officer about a plea or an officer may initiate a conversation with
the prosecutor. What causes consultation in some cases and not others appears
to be a function of many factors related to the case, the personalities of the
prosecutor and officer, and the local customs of the prosecution team. This Sec-
tion discusses some of the factors mentioned by officers and prosecutors in in-
terviews and then turns to particular types of cases where police consultation is
especially likely, including those where the victim or defendant is an officer or a
cooperating witness.
96. Karen Gorbach Rebrovich, Factors Affecting the Plea-Bargaining Process in Erie County : Some
Tentative Findings , 26 Buff. L. Rev. 693, 696 (1977) (citing Buffalo Police Department, Po-
lice Academy Training Bulletin, Rule 4.7.9 (Feb. 1973)).
97. For some low-level offenses, the self-imposed ban on plea bargaining may reflect a desire to
avoid the administrative hassle that could be imposed on law enforcement officers if they
were drawn into haggling with every defendant or attorney who wanted to sway a case. Po-
lice departments' self-imposed bans on plea bargaining could also be a way to avoid any po-
litical fallout that results from ill-advised pleas. As one author put it, "[i]t may be more po-
litically expedient for the police not to give official opinions of preferred disposition
decisions because they then share in the responsibility for what could become an embarrass-
ing decision." McDonald, supra note 15, at 215 n.18. Still another reason police might prevent
themselves from getting involved in plea bargaining is a strong belief in the separation of
powers, an issue discussed in more depth in Part II.
98. See supra notes 6-7 and accompanying text.
1754
COPS AND PLEAS
i. Factors Leading to Police Involvement in Plea Bargaining
Prosecutors and police officers are awash in criminal cases. For officers who
are not routinely involved in plea bargaining, it takes something special about a
case to trigger the officer's involvement. And there are many potential triggers.
The examples below touch on some of the most commonly articulated triggers.
Needless to say, the list is far from exhaustive.
Personal Rapport Between Prosecutor and Officer . According to interviews
conducted for this Essay, personal relationships between prosecutors and police
officers matter immensely in considering whether plea consultations will occur.
"[P]lea bargaining], no matter what the structure is, is really about what the
relationship is," said Greg Seidel, former chief of detectives at the Petersburg
Police Department in Virginia." "[H]ow the prosecutor views the competency
of the officers and whether or not they are willing to listen .... [The] plea bar-
gain is a very human thing, it's not easily broken down into a decision tree."100
William J. Johnson, the executive director of the National Association of Police
Organizations (NAPO), noted that the rapport between officer and prosecutor
is hard to predict, given the variety of personality types that become prosecu-
tors. Some prosecutors naturally gravitate toward the company of officers,
Johnson said, "go[ing] on ride-alongs on [their] day off," for example, while
others are decidedly wary of their police colleagues, subscribing to the notion
that, "'I took this job because I really don't trust the police and my job is to po-
lice the police.'"101 Prosecutors who align with either of these archetypes would
have different levels of willingness to seek police input on a caseģ
Severity of Crime . The seriousness of the crime also factors into whether
plea consultations will occur, with more serious and complicated cases being
more likely to see consultation between the police and prosecutors. "Normally,
as far as plea bargaining goes, they may tell us they're going to make an offer
but generally speaking, unless it's an egregious type of offense, they won't dis-
cuss anything about the plea other than that they're going to do it," said Mike
Rickman, general counsel for a law enforcement association in Texas.102 Los
Angeles prosecutor Shannon Presby said that, in run-of-the-mill cases, "the po-
99. Telephone Interview with Greg Seidel, Former Chief of Detectives, Petersburg Police Dep't,
Va. (Mar. 4, 2015).
100. Id.
101. Telephone Interview with William J. Johnson, Exec. Dir. & Gen. Counsel, Nat'l Ass 'n of Po-
lice Orgs. (Feb. 27, 2015).
102. Telephone Interview with Mike Rickman, supra note 50.
1755
lice have almost no input,"103 but consultation will likely take place "on the oth-
er extreme, [in] complex either homicide cases- very, very serious case[s] - or
sexual assault cases or very complex fraud cases in which the police officers
have [done] a whole lot of investigation and often times know the case much
better than the prosecutor."104 "Sex crimes and homicides, I would say, are the
two where I think there is the most communication that goes back and forth,"
said Bill Amato, a former prosecutor who now works as an attorney for the
Tempe Police Department in Arizona.105 Gary Ingemunson, a police officer
turned union attorney, put it this way: "Let's say I'm working burglaries and I
arrest someone for [a] more or less routine burglary .... If I didn't ask, I
would probably never hear what happened to that case unless it's going to go to
a jury trial."106 "[N]ot every case is the case of the century," said Rod Kusch, a
captain in the homicide division of the Los Angeles Police Department.107 "I
would fully expect a conversation, at least some meeting of the minds [on a
murder case], but low-level case[s] that happen every day in Los Angeles
County, people don't always say, 'Let me stop [in and talk about it]."'108
103. Telephone Interview with Shannon Presby, supra note 2.

104. Id.
105. Telephone Interview with Bill Amato, Police Legal Advisor, Tempe Police Dep't, Az. (Mar. 5,
2015).
106. Telephone Interview with Gary O. Ingemunson, Indep. Counsel, L.A. Police Protective
League, & Former Police Officer, L.A. Police Dep't (Mar. 27, 2015).
107. Telephone Interview with Rod Kusch, Captain, Homicide Div., L.A. Cty. Sheriff's Dep't
(Mar. 4, 2015).
108. Id. The surprising exception to this rule of thumb seems to be traffic enforcement, where it
is not uncommon for officers to develop a special interest in the outcome of the case, despite
the relatively low stakes of the offense. The traffic ticket sentiment is noted by a number of
prosecutors and police officers. As Jennifer Myers noted, "I don't think the police are in-
volved too much in plea negotiations. The only thing I can think of is traffic tickets .... I've
never had a case where I said, 'Are you okay with this plea?' There is a discussion that is fair
to have, but I don't necessarily say that we seek approval." Telephone Interview with Jennifer
Myers, Assistant Counsel, Unified Gov't of Wyandotte Cty., Kansas City, Kan. (Jan. 6,
2015). Mike Feinmel, a prosecutor in Virginia, also noted this irony: "Ironically, I've found
the most significant cases and the least significant case[s] are times . . . where you get the
most involvement from law enforcement in terms of what you're doing, how are you han-
dling [the case]. [The] vast majority of the middle range of cases, if I have a conversation
with an officer about this is how I'm thinking about resolving the case, usually they just
said, 'I don't know, that's up to you. My job is to investigate the case.' . . . Ironically, the low-
er the level case . . . your traffic cases, your DUIs, your hit-and-runs, you get the officers
who are really animated about things. Maybe it's because of the inherent dangerousness of
the traffic job that they're the ones that are involved in the pursuits, they're the ones in-
volved in seeing the horrors of drunk driving
session of cocaine and I call the officer up and I say, 'I think he's going to plead guilty ... his
1756
COPS AND PLEAS
Cases less serious than murder and rape can also spur police consultation,
however, when they become personal. Charlotte Police Major Cam Selvey gave
two examples: domestic violence "where I knew there was a history- that was
something I would not want to back off on," and cases where "someone laid
their hands on me . . . '[W]e fought out in the middle of the street for twenty
minutes. I'm not willing to let this one go.'"109
Personal Interest in the Job . Some officers just care more about their cases.
"[There are] some guys that seek a doctorate and some guys that just are satis-
fied with a bachelor's," said Mike Rickman, the Texas law enforcement associa-
tion attorney. "Some officers take a lot more interest in their cases."110 Johnson,
of the National Association of Police Organizations, compared officers' varying
levels of interest to those of artists and tradesmen: "There are some paintings
that you put more effort into. If you're a plumber there is a job you put more
effort into," Johnson said.111 Prosecutor Elsa Seidel agreed about the diversity
of interest among officers. "Some officers' position is, 'I make my case and I ar-
rest them and after that it's completely up to you,"' she said.112 "Some officers
really do want to be involved in the process. Some of them only care if the per-
son was particularly difficult or particularly nice."113 Damon Mosler, a prosecu-
tor who serves as a liaison to the San Diego Sheriff's Department, estimated in
"over half the cases, I think most cases . . . [the] cop could care less what hap-
pens."114 Added Charles Huth, a police captain in Kansas City: "Empirically,
there [are] varying degrees of interest. € . . [S]ome officers are extremely in-
volved even to the point they get emotionally involved."115
Officers' Job Classification and Seniority . Detectives- have more influence than
patrol officers, and veteran officers have more influence than junior ones, at
least according to the intuitions of those interviewed for this Essay.116 Patrol
officers see a higher volume of cases and have shallower interactions with each
one. As a result, they are less likely to care about the outcomes of their cases
guidelines call for three to six months,' ninety-nine out of one hundred times the officer is
going to say, 'Yeah, whatever. I trust your judgment.'" Telephone Interview with Mike
Feinmel, supra note 82.

111. Telephone Interview with William J. Johnson, supra note 101.
112. Telephone Interview with Elsa Seidel, supra note 81.
113. Id.
114. Telephone Interview with Damon Mosler, supra note 92.

116. Mike Rickman makes the distinction between patrol officers and detectives just after the
quotation above. Telephone Interview with Mike Rickman, supra note 50.
175 7
than detectives, who may have spent months investigating a crime and getting
to know the victims. Veteran officers have increased influence compared to jun-
ior ones. This may be a function of the older officers' more developed network
of relationships, more imposing reputation, or more nuanced understanding of
how the justice system works. "At the beginning, you're kind of naïve to the
process," said Kusch, a detective with more than three decades on the job.117
"Once you understand the process, if you're going to take ownership of the
case, you've got to take ownership. If I really feel passionate about a particular
case, I need to get that word to the DA."118 However, some thought seniority
cut against police involvement. "I think as they progress through their career
they understand the disappointments that are inherent in our criminal justice
system," added Johnson.119 "[T]hey reach the point not that they don't care,
but they get cynical, almost like self-protection: 'Don't get too involved, be-
cause you don't know what the DA is going to do, and you never know what
the jury is going to do.'"120
Office Size and Logistics . Where there are numerous cases and large prosecu-
tors' offices and police departments with satellite branches, the logistics of con-
sulting with police officers can be overwhelming.121 Where caseloads are low
and the number of prosecution-team members small, the opportunity for offic-
ers to influence plea bargaining is at its height. The apex of influence, officers
and prosecutors suggested, is in suburban or rural jurisdictions, especially
those policed by elected sheriffs. Officers in such jurisdictions have the greatest
opportunity and motivation to get involved. "When you get into the rural are-
as, the sheriff and the p[olice] department] and all of them- they work so
closely together with the DA's office," said Mike Rickman.122 "They have to
117. Telephone Interview with Rod Kusch, supra note 107.

118. Id. ; see abo Telephone Interview with Elsa Seidel, supra note 81 ("Every once in a while you'll
get somebody who is obsessive and really what they are, normally, is new officers that are -
that don't yet have a perspective, I guess would be the right word for it, and everything to
them is a capital case. The same thing happens with new prosecutors.").
120. Id.
121. See id. ("In practical terms, especially metropolitan offices, there's such a high caseload,
there's times when you weren't able to get in touch with someone, particularly with the po-
lice officers [who work at night]."). On the other hand, the logistics of not consulting can al-
so cause frayed relations between prosecutors and police. As police officer Chris Collins sug-
gested, "[There's] nothing worse for the officer than to get a subpoena, run graveyard, and
put on your suit [and] tie, and you walk in [to court and] they say, 'We don't need you. He's
going to plead to a misdemeanor.' That's the worst thing in the world." Telephone Interview
with Chris Collins, supra note 80.
1758
COPS AND PLEAS
work so closely together because they cover so much ground."123 As one author
wrote, small-town police chiefs feel responsible for knowing what happened to
all the town's serious cases because, "to the small town's citizens [,] [the crime]
will be viewed more seriously, and they will hold their chief responsible for
knowing the outcome and being able to explain it."124 In part, this may also be
because less densely populated, rural jurisdictions lack probation services to
help with pre-sentence reports. A 1978 study quoted a prosecutor who "ex-
plained that in those sections the local sheriffs have a major influence in select-
ing an appropriate plea bargain. They have this influence because they are vir-
tually the sole source of information. They know what the defendant did and
are usually familiar with the defendant's background."125
2. Special Cases Where Police Plea Involvement Is Heightened
Beyond the general factors discussed above, there are special cases in which
it is particularly likely officers will get involved in plea bargaining.
Officers as Victims . From battery on an officer to first degree murder, officers
are constantly at risk of becoming victims. When an officer is a victim, prosecu-
tors will likely consult with the officer, her family, the police union, and the po-
lice department before any plea is offered.126 This is partially an extension of
the victims' rights movement, which advocates that victims and their families
be informed about the status of the prosecution's case and be given an oppor-
tunity to address the court at sentencing.127 What makes officer- victims differ-
ent from other victims is that prosecutors feel inclined to take into account not
only the officers' interests, but also those of the officers' employers and un-
123. Id.
124. McDonald, supra note 15, at 215 n.18.

125. Herbert S. Miller et al., U.S. Dep't of Justice, Nat'l Inst, of Law Enf't & Criminal
Justice, Plea Bargaining in the United States 76 (1978).
126. Malcolm Feeley, in discussing examples where a police liaison officer would "press the pros-
ecutor to take a hard line," explained that "[tļhese cases usually involve incidents in which
there was an injury or insult to the arresting officer, and in such instances the prosecutors
will usually oblige with a recommendation for higher bond or a reluctance to drop the
charges." Seth F. Kreimer, Releases, Redress, and Police Misconduct: Reflections on Agreements To
Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U. Pa. L. Rev.
851, 883 n.127 (1987) (quoting Malcom Feeley, The Process Is the Punishment 46
(1979))-
127. E.g., Cal. Const, art. I, § 28 ("[A] victim shall be entitled [to the right] [t]o be heard, upon
request, at any proceeding, including any delinquency proceeding, involving a post-arrest
release decision, plea, sentencing, post-conviction release decision, or any proceeding in
which a right of the victim is at issue").
1759
ions.128 Police departments and unions have deep interests in preventing their
members from becoming victims. Naturally, these organizations will want to
have a say in the punishment of anyone who has victimized an officer. In San
Diego, for example, police unions made an election stir when the prosecutor
failed to consult them in an officer-as-victim case.129
Even in relatively minor cases, police unions may push prosecutors to care-
fully consider the officers' interests before settling the case. Cristina Escobar, an
attorney for the Dade County Police Benevolent Association, sends letters to
prosecutors in police-victim cases warning them not to make plea offers with-
out first consulting her or the officers she represents: "[I] put it on the record,
[the officer] want[s] to plead them to the guidelines and, anything below that,
they need to [let the officer know]."130
Officers as Defendants. The officer-defendant case is the flip side of the
officer-victim case. When officers are defendants, prosecutors are also likely to
consult police departments and unions about the appropriate plea. Officer mis-
behavior tarnishes the reputation of the department, so police chiefs may want
a severe punishment for the officer-defendant in order to deter future miscon-
duct and assure the public that no special treatment is given to misbehaving
police. Or, the department may want leniency, under the theory that officers'
jobs entide them to "professional courtesy."131 Either way, the police depart-
ment would want to have a say. Meanwhile, police unions may also want to
weigh in on the plea bargain, if they see it as their duty to push for as low a
punishment as possible for the officers they represent. Of course, there may be
areas where unions are willing to give and take with prosecutors in the plea ne-
gotiations. Financially, much rides on the specific charge to which the officer
pleads guilty, because guilty pleas to some crimes can strip the officer of her law
enforcement credentials and retirement benefits, while guilty pleas to other
128. At least some prosecutors have internalized the need to treat officer-victim cases differently.
A survey of Nebraska prosecutors includes a question of whether there are particular cases
they are reluctant to plea bargain on. "Assaults on police officer" is one of the responses.
Kray & Berman, supra note 18, at 120.
129. Telephone Interview with Damon Mosler, supra note 92.

130. Telephone Interview with Cristina Escobar, supra note 75. Escobar provided me with two
sample letters that she has sent to prosecutors warning them not to plead out the case.
131. Michael Dresser, When Police Let Officers Skate , Respect for Traffic Law Tanks , Balt.
Sun (Feb. 6, 2011), http://articles.baltim0resun.c0m/20u-02-06/features/bs-md-dress
er-getting-there-o2-09-20no204_i_police-officer-law-enforcement-professional-courtesy
[http://perma.cc/6NDA-N8J6] .
1760
COPS AND PLEAS
crimes do not.132 In this respect, the officer might be willing to accept a more
serious punishment if it is structured in such a way as to preserve her ability to
work in law enforcement. For these reasons, police departments and unions
have a vested interest in the plea bargain and are likely to be consulted.
Cooperators and Informants. Plea negotiations concerning cooperators and
confidential informants are another area of great interest to the police. Officers
use the prospect of a favorable plea, or the threat of an unfavorable one, to win
cooperation from witnesses. In such cases, officers may have very strong opin-
ions about what types of pleas are required to get the witness to cooperate, and
officers may press prosecutors to deliver pleas on those terms. That is the good-
cop approach. The bad-cop approach would be to threaten to scuttle a plea
offer that is already on the table, if the potential witness refuses to cooperate.133
There is no guarantee that the prosecutor will agree to the plea requested by
the police officer, but if the prosecutor refuses to go along, he can be sure to
face pressure from his law enforcement colleagues.134
C. Police Influence in the Face of Prosecutorial Resistance
Even when prosecutors refuse to consult, or agree to consult but refuse to

take police input to heart, officers still have ways to influence plea offers. This
Section explores the mechanisms officers can use to pressure prosecutors.
132. See 40 III. Comp. Stat. Ann. 5/5-227 (West 1993) ("None of the benefits provided for in
this Article shall be paid to any person who is convicted of any felony relating to or arising
out of or in connection with his service as a policeman."); Roger L. Goldman & Steven Pu-
ro, Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct ?, 45 St. Lou-
is U. L.J. 541 (2001) (discussing criteria for revocation of law enforcement credentials) ; H.C.
Lind, Annotation, Misconduct as Affecting Right to Pension or Retention of Position in Retirement
System , 76 A.L.R.2d 566, § 5 (1961).
133. See , e.g. , Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democrat-
ic Society 191 (2d ed. 1975) ("When the police do bring prostitution cases to court, they
will typically put pressure upon the district attorney not to accept a plea of guilty in ex-
change for a fine .... [A]n arrest which does not lead to conviction and a jail sentence un-
dermines the policeman's ability to constitute an authoritative threat to the prostitute.").
134. Prosecutor Feinmel recalled a recent case where the defendant was on his fourth DUI, but
the police wanted to give him a favorable plea because he could provide useful information
about a drug trafficker. "I said I can't do that," Feinmel recalls. "Ultimately, I called the de-
tectives .... If he kills somebody, aside from the public image side of it, it's on my con-
science." Telephone Interview with Mike Feinmel, supra note 82. Pearce recalled a situation
where he developed a suspect in a host of identity thefts, but federal prosecutors wanted her
to have immunity so that she could help with a drug trafficking investigation. "No frigging
way I'm going to let you drop a case with all these victims and all the money she owes,"
Pearce said. Telephone Interview with Dan Pearce, supra note 47.
1761
1 . Police Brass and Police Unions
Upset with the prosecutor's proposed plea? Officers can raise their concerns
with police management or with their union representatives in the hopes that
the higher-ups in these organizations can change the prosecutor's decision.135
Police departments and district attorneys' offices necessarily work together on
many thousands of cases each year, and the chain of command on each side of
the prosecution team has a lot at stake in maintaining good working relations
with their prosecution- team colleagues. A high-ranking police official can call a
supervisor in the prosecutor's office to ask for help overturning a line-level
prosecutor's plea decision, assuming the police official is willing to spend the
capital. "If you were in a detectives squad, it would be your bosses in the detec-
tives squad speaking with the district attorney's office why someone was get-
ting a plea deal rather than going to trial," said Michael Paladino, a police union
official and a detective in the NYPD.136 Even if the line officer does not want to
involve his supervisors, the police bureaucracy might get involved if the organ-
ization has a particular interest in the outcome of the case, an interest that
could include protecting the police department's public image.137
Because police unions are important players in local politics, they are also
able to pressure district attorneys' offices about bad pleas. "[I]f the union pres-
ident has a good working relationship both with his or her police chief ... as
well as with the prosecutor, it's often times better for everyone involved," said
Johnson. "Most of the participants involved, they understand that there are go-
ing to be cases where I have to publicly disagree with something you did, but
next week I'm still going to call you about something [to ask for a favor or
work out an issue]."138
135. For examples of police chiefs criticizing prosecutors' plea deals, see Barry Meier, Alan Der-
showitz on the Defense (His Own), N.Y. Times (Dec. 12, 2015), http://www.nytimes.com/2015
/12/13/business/alan-dershowitz-on-the-defense-his-own.html [http://perma.cc/WD4Y
-5QJ7] ("A local prosecutor, after meetings with Mr. Epstein's defense team, recommended
that he be charged only with a misdemeanor. The chief of the Palm Beach police department
was so outraged by the proposal that he wrote a letter to the Justice Department asking it to
get involved in the case.") ; and Letter from Michael S. Reiter, Chief of Police, Town of Palm
Beach, to [Redacted] (July 24, 2006), http://abcnews.go.com/images/WNT/police
_letteri .pdf [http : //perma.cc/5EUW-B4QF] .
136. Telephone Interview with Michael Paladino, President, Detectives' Endowment Ass'n of the
N.Y. Police Dep't (Mar. 24, 2015).
137. See supra Section II.B.2 (discussing cases involving officer-defendants and officer- victims).
138. Telephone Interview with William J. Johnson, supra note 101. In Miami, Steadman Stahl of
the police union explained that the union is involved in political screenings for elected judg-
es. Telephone Interview with Steadman Stahl, supra note 60 ("Anyone who wants to run for
1762
COPS AND PLEAS
Although union officials mostly focus on cases involving officers as victims

or defendants,139 unions sometimes see it as their duty to speak up when their
members are upset about the way prosecutors are handling cases. Sean Smoot,
an Illinois union official, gave the example of a group of sex-crime investigators
who complained to the union about a prosecutor who was always pleading cas-
es out to the less serious charge of simple battery. "When that issue was raised
with the state's attorney, they reviewed some cases and wound up letting the
assistant state's attorney go," Smoot said.140 Similarly, a group of officers in
Gulfport, Mississippi, banded together to pressure a prosecutor they believed
was not doing her job. The prosecutor was fired after her supervisor received
"outraged complaints from a number of police officers that [the prosecutor]
was negotiating plea bargains and dismissing cases without their input."141
Police management and police unions can sometimes work in tandem to
influence a plea, with the police chief using the threat of union pressure as cov-
er to raise his own concerns with the district attorney. "I give the chief the ex-
cuse to go over and talk to the state's attorney and he can tell the state's attor-
ney, T wasn't going to say anything, but now the union's involved and they're
asking questions, and just as a professional courtesy I'm telling you,"' Smoot
a judge, we do an interview, we bring them in. On [the] questionnaire we ask them, 'Would
you listen to an officer to get their input before sentencing somebody?' I've only had one or
two who said . . . 'No, it's unethical.'").
139. The influence of the police brass and the police unions was much discussed in the wake of
the shooting of Michael Brown in Ferguson and the killing of Eric Garner in New York. In
those deaths, however, prosecutors were criticized for not prosecuting officers aggressively
enough. See, e.g., Paul Butler, The System Must Counteract Prosecutors' Natural Sympathies for
Cops, N.Y. Times: Room for Debate (Apr. 28, 2015), http://www.nytimes.com/room
fordebate/2014/12/04/do-cases-like-eric-garners-require-a-special-prosecutor/the-system
-must-counteract-prosecutors-natural-sympathies-for-cops [http://perma.cc/GZJ3-8ZB9]
("There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner.
It's because District Attorney Dan Donovan of Staten Island did not want him to be."); Joel
Currier, Appeals Court in St. Louis Hears Arguments over Special Prosecutor in Michael Brown
Shooting, St. Louis Post-Dispatch (May 10, 2016), http://www.stltoday.com/news/lo
cal/crime-and-courts/appeals-court-in-st-louis-hears-arguments-over-special-prosecutor/ar
ticle_30cb6adb-30be-5fd3-9538-16e3cf4ad13c.html [http://perma.cc/66NA-2ZSD] ("Activ-
ists who filed suit last year say St. Louis County Prosecuting Attorney Robert McCulloch
acted in bad faith during grand jury proceedings and 'never intended to prosecute Darren
Wilson,' the Ferguson officer who shot Brown, 18, on Aug. 9, 2014."). Meanwhile, in other
cases, prosecutors may be doing wrong by allowing the union and the police administration
to push for a more aggressive prosecution.
140. Telephone Interview with Sean Smoot, supra note 90.
141. Brief for the Respondent in Opposition to Petition for Writ of Certiorari at 9, Golden v. City
of Gulfport, 523 U.S. 1138 (1998) (No. 97-1599), 1998 WL 34112511, at *9.
1763
said.142 Indeed, the union may have even more freedom than police brass to
meddle with prosecutors' plea decisions, because the police union is not part of
the prosecution team- it does not have to abide by whatever plea bargaining
etiquette reigns within the jurisdiction.
However, the union's position outside the prosecution team also adds con-
troversy to its involvement in the plea process. "I never dealt with unions, and I
don't think that's the appropriate place" for them to get involved, said Andy
Leonard, a retired major with the Charlotte-Mecklenburg police. And some un-
ion officials say they would never get involved in plea bargaining. "I can't say
that that has happened," said Paladino, the NYPD detective and union official.
"I never had to ask the union to get involved in any of that .... It's not a union
issue when a member of the public [is involved]."143
2. Media
Newspapers and local television news are routinely part of police efforts to
influence plea bargaining. Officers can derail a plea by leaking word that the
prosecutor is considering a lenient offer and did not consult with police first. If
the plea offer has already been made, officers may go on the record to voice
their dissatisfaction with the plea and make clear that they were not consult-
ed.144 These disparaging comments can help galvanize public opposition to the
plea and put pressure on the sentencing judge to reject the plea agreement as
not being in the interests of justice. Even after the judge accepts the plea, offic-
ers may publicly denounce the plea to put pressure on prosecutors to be more
punitive in the future.145 In one such example, police stormed out of the sen-

143. Telephone Interview with Michael Paladino, supra note 136.
144. Alex Green, Whiskey Bottle Plea Deal Garners Attention , Sandusky Reg. (May
19, 2014), http://www.sanduskyregister.com/News/2014/05/19/Whiskey-bottle-plea-deal
-garners-attention [http://perma.cc/JR4Q-RWAY] ("Detective Carpenter has joined
Mitchell and Taylor in their strong opposition of the plea deal for Johnson. 'The judicial sys-
tem has failed this family,' Carpenter said recendy. '(Mulligan) didn't consult me, he
didn't consult the family.'") ; Mark Wilson, Detective Criticizes 'Bad' Plea Agreements for
Sexual Offenders , Evansville Courier & Press (Sept. 19, 2010), http://archive.courierpress
.com/news/local/detective-criticizes-bad-plea-agreements-for-sexual-ofFenders-ep-4462343
41-326825181.html [http://perma.cc/76NM-LVER] ("'I just couldn't live with another bad
deal,' [Detective Turpin] said. 'What this has to do with is that this is the umpteenth time
I've had a case in which (the prosecutor's office has shown) no regard for the victim.'").
145. Kristina Smith, Detective Expresses Plea Deal Concerns , Port Clinton News Herald
(May 19, 2014), http://www.portclintonnewsherald.com/story/news/2014/05/19/detective
1764
COPS AND PLEAS
tencing hearing for a defendant accused of murdering a cop. The officers made
clear to the press that they "were not consulted on the plea bargain, and when
they learned of it and objected, their objections were overlooked."146 Interest-
ingly, even though there is no requirement that prosecutors consult police
officers about plea bargaining, media accounts often portray the lack of consul-
tation as a failure on the part of the prosecutor,147 perhaps suggesting that the
public expects officers and prosecutors to act in concert on plea bargaining.148
-expresses-plea-deal-concerns-/9303i2i [http://perma.cc/S3U5-288F]. Commenters on the

article encouraged the police to object to more prosecutorial practices.
146. Gay Elwell, Pflugler Pleads Guilty in Killing of Officer, ; Gets up to 30 Years , Morning
Call (May 17, 1989), http://articles.mcall.com/1989-05-17/news/2689922_1_dirt-road
-bowser-s-oct-police-officers [http://perma.cc/6JNM-Z8UV] .
147. One article recounted the back-and-forth recriminations about whether the prosecutor
had actually tried to consult with the officer, another indication that the media expects
consultation: "'There have been times we enter plea bargains and don't talk to the police
first because we have so many cases,' [the prosecutor] said, 'but this wasn't one of them.'"
Debbie Wächter Morris, Distríct Attorney Disputes Police Claim in Plea , New Castle News
(Feb. 16, 2007), http://www.ncnewsonline.com/news/local_news/district-attorney-dis
putes-police-claim-in-plea/article_7ie76850-dd67-5i27-9a3C-8eo66oa6 1e71.html [http://
perma.cc/U4A3-6Q77] .
148. Another measure of this is that, when police are consulted, prosecutors make sure to tell re-
porters that the police signed off on the plea. This appears to be a way to share any of the
blame that might flow from the plea. See, e.g., Kyle Campbell, Man Charged in Noyac Home
Invasion Takes Plea Deal, 27EAST.COM (May 14, 2014), http://www.27east.com
/news/article.cfm/General-Interest-Southampton/6i542/Man-Charged-In-Noyac-Home-In
vasion-Takes-Plea-Deal [http://perma.cc/UW85-S2QP] ("Robert Clifford, a spokesman for
Suffolk County District Attorney Thomas J. Spota, said the decision was made to offer a plea
based on the findings of Mr. Spota's office and Town Police investigators. 'This disposition
is based on our criminal investigation of this matter in consultation with the Southampton
Town Police Department,' Mr. Clifford said."); Overlin Sentenced in Student Death ,
Waynesville Daily Guide (Sept. 5, 2013), http://www.waynesvilledailyguide.com/article
/20130905/NEWS/130909496 [http://perma.cc/C2Z8-F3JX] ("Rice said Smith's family and
police were consulted as he negotiated with Overlin's attorneys with regard to the plea bar-
gain. 'Both law enforcement and Tomarken's family were involved from the very beginning,
and agreed that the final outcome of this case was just and appropriate,' said Rice, adding
that members of Smith's family were present when the sentence was handed down.") ; David
L. Shaw, Decision Time in DA Race , Finger Lake Times (Oct. 28, 2009), http://www
.fltimes.com/news/election-decision-time-in-da-race/article_4bddeeo4-obo8-5bf4-8d46-da
5871c573fc.html [http://perma.cc/PN2U-GEX2]; Doug Staley, Kidnapping Charges
Dropped, IndeOnline.com (Apr. 23, 2009), http://www.inde0nline.c0m/article/20090423
/News/304239885 [http://perma.cc/XWE6-CTAC]; Toledo Man, 56, Found Guilty in
1976 Death at North-End Bar, Blade (Nov. 27, 2002), http://www.toledoblade.com/lo
cal/2002/ii/27/Toledo-man-56-found-guilty-in-i976-death-at-north-end-bar.html [http://
perma.cc/9V9B-MBAN] ("Mr. Cook said Mr. Duran's family and police were consulted in
advance about the plea agreement entered into by Briceno. He said the prosecution will not
oppose a request for early release, which 'the family is also aware of,' Mr. Cook said.").
1765
Going to the media is not uncommon, but neither is it routine. In inter-

views for this Essay, prosecutors and police officers expressed their concerns
about the effect on the prosecution team of involving the media in the team's
internal conflicts. "On a case-by-case basis, I think that has the potential to
undermine the reliability of the justice system," said prosecutor Mike
Feinmel.149 "They're certainly free to say at election time, 'Hey, we need a dis-
trict attorney that is going to protect the public.' That's fair game, that is a litde
different than in a case-by-case basis undermining the public perception of the
justice system."150 Attorney Gary Ingemunson, a former police officer himself,
pointed to a recent Los Angeles case where an officer who was unhappy with
the way police were handling a child molestation case complained to the Los
Angeles Times . The police department leadership disciplined him for this breach
of prosecution- team etiquette.151 "It makes a certain amount of sense for the
state's attorneys to at least touch base [with the police], especially when you're
talking about cases [with] really significant crimes," said Smoot.152 "From a po-
litical standpoint, if you're going to do a plea agreement and you don't want
somebody out in the newspaper the next [day] calling you out on it, then it's
probably a good idea to talk to the officers."153
This discussion about the use of media coverage would not be complete
without a coda of skepticism. It may be that the police complain to the media,
even when they believe a plea is appropriate, because it benefits them to criti-
cize a plea bargain in the press. By publicly distancing themselves from the
plea, the police can get all the benefits of a guilty plea- including certainty of a
conviction154 and limited expenditure of resources on further investigation155 -
149. Telephone Interview with Mike Feinmel, supra note 82.

150. Id.
151. Telephone Interview with Gary O. Ingemunson, supra note 106.

153. Id.
154. Prosecutor Mike Dynes points out: "The other thing I think our officers are always disap-
pointed with [is] the judge's sentencing. They know that if we get a decent plea deal that
they wouldn't have expected much more from the judge .... They don't necessarily address
the court directly about it, but there is a sense of disappointment. Officers who understand
the system and how it works and the nuances, they seem to be satisfied. It's the ones who
don't understand it . . . they tend to not listen to what you're saying." Telephone Interview
with Michael Dynes, Assistant City Prosecutor, Peoria, Ariz. (Mar. 16, 2015).
155. "I think that police officers accept plea negotiations and plea offers," said Bill Amato. "There
is a benefit to the police officers because [] a trial can often take a lot of time away from the
police officer's other duties .... I would say it's an accepted, necessary evil in the minds of
law enforcement." Telephone Interview with Bill Amato, supra note 105; see abo Telephone
Interview with Cam Selvey, supra note 40 ("When they have a trial, I have a detective who is
1766
COPS AND PLEAS
without appearing soft on crime. By giving the impression that the police want
to take every case to trial, the department can promote its own reputation for
assiduousness without having to do additional work.
3. Judges
For an officer who has a burning desire to influence a plea deal, there is the
nuclear option: tell it to the judge. Officers have gone this route by writing let-
ters to judges or showing up at sentencing hearings to condemn the prosecu-
tor's plea offer.156 This technique is extremely controversial within the prosecu-
tion team, not only because it airs the team's internal conflicts, but also because
it raises the question of who is bound by the prosecutor's plea bargain: the
prosecutor only, or the prosecutor and the police? If the plea deal promises that
the state will not make a recommendation at sentencing or that the state will
ask for the minimum guideline sentence, does this promise prevent the police
officer from asking the court for a severe punishment? And what is the remedy
if the officer is found to have breached the agreement?
Courts have waded into these questions when defendants have attempted
to withdraw pleas or asked for specific performance to be ordered on the
grounds that the police violated the terms of the plea agreement by weighing in
on the punishment.157 At the point that a defendant seeks to withdraw his or
her plea, the court must determine whether the terms of the agreement were
violated by the officer's actions, which in turn requires the court to decide
whether the prosecutor's promise to the defendant binds the police as well.158
unavailable for anything else because they are tied up in court for however long that case is
going on.").
156. A similar end run can be accomplished if the officer funnels information to a probation
officer. The probation officer makes the sentencing recommendation and is, in at least some
jurisdictions, not seen as an officer of the court bound by any promises made by the prose-
cutor. Enterprising police officers will sometimes give information to the probation depart-
ment as a way to get around the prosecutor's plea deal.
157. Examples of this fact pattern can be seen in the following cases. State v. Rogel, 568 P.2d 421,
423 (Ariz. 19 77); Thomas v. State, 593 So. 2d 219, 220 (Fla. 1992); State v. Lampien, 223 P.3d
750, 760 (Idaho 2009); State v. Chetwood, 170 P.3d 436, 441 (Kan. Ct. App. 2007); State v.
Sanchez, 46 P.3d 774, 780 (Wash. 2002), as amended (May 13, 2002); State v. Matson, 674
N.W.2d 51 (Wis. Ct. App. 2003) (holding that officer violated plea by sending letter to judge
asking for maximum punishment); see also State v. Conger, 797 N.W.2d 341, 346 (Wis.
2010) (narrowing Matson by ruling that it "did not stand for the proposition that law en-
forcement views can never be properly considered by a court" but was limited to its facts).
158. In one case, the dissatisfied police officer first complained to the judge and then to the
newspaper. The officer claimed to have learned about the armed robbery plea agreement just
minutes before he was supposed to testify. The detective "objected toward the end of the
1767
Not surprisingly, given the contentiousness of the issue and the lack of rules
about the prosecution team's internal dynamics, courts are evenly split about
whether the officer is bound by the prosecutor's plea offer.
Courts that hold that the police are bound by the prosecutor's promise, and
thus that the defendant should be allowed to withdraw his plea, believe that
the officer's recommendation to the judge is "an improper attempt to influence
the sentencing by breaching the state's promise."159 The Florida Supreme Court
even extends this doctrine to cover statements made by officers in pre-sentence
reports. "[BJasic fairness mandates that no agent of the state make any utter-
ance that would tend to compromise the effectiveness of the state's [plea] rec-
ommendation," the Florida court held.160 Meanwhile, courts that do not allow
the defendant to withdraw her guilty plea rely on the assumption that officers
play no role in plea bargaining. Because officers play no role, the courts reason,
no defendant should have assumed that the prosecutor's plea offer would limit
what the police could say, and therefore the officer's statement to the judge
does not deprive the defendant of the benefit of any bargain. The Arizona Su-
preme Court explained: "The police participate in neither negotiations nor the
agreement and have no voice in dictating what terms should be considered,
bargained for or included."161 It added that "[t]he provision requiring the State
to stand mute on sentencing here obviously refers to and binds only the county
prosecutor and was not intended to prohibit police officers from airing their
opinions when specifically asked to do so by probation officers."162
proceedings, requesting a conference in the judge's chambers," which the judge granted so
that he could explain why he agreed to the reduction in charges. Lesser Robbery Charge Irks
Police , Milwaukee J., July 12, 1977.
159. Ohio v. Liskaný, 964 N.E.2d 1073, 1088 (Ohio Ct. App. 2011).
160. See also Thomas v. State, 593 So. 2d 219, 220 (Fla. 1992) (expanding the reasoning to proba-
tion officers: "Clearly, a probation officer is an agent of the 'state,' notwithstanding the
State's surprising assertion to the contrary. Lee therefore dictates that Thomas should have
been allowed to withdraw his plea because a sentencing recommendation higher than the
one Thomas originally bargained for was communicated to the court") ; cf. Lampien , 223 P. 3d
at 760 ("[T]his Court holds that a plea agreement is not breached when such officers testify
contrary to the plea recommendation as victims pursuant to their individual statutory and
constitutional rights." (emphasis added)).
161. Rogel , 568 P.2d at 423.
162. Id.; see also State v. Thurston, 781 P.2d 1296, 1299-1300 (Utah Ct. App. 1989) ("These stat-
utes would become meaningless if law enforcement were bound to recommend only what
the prosecutor had agreed to recommend in a plea bargain, and could not express contrary
information or opinions, particularly when they had not participated in the bargain itself") ;
cf. State v. Bowley, 938 P.2d 592, 600 (Mont. 1997) ("[W]hen a probation officer recom-
mends a sentence different from that contained in a plea agreement, this does not constitute
a breach of the plea agreement . . . .").
1768
COPS AND PLEAS
Regardless of the rule in a particular jurisdiction, the threat that the de-
fendant may be allowed to withdraw her plea does not seem to be much of a
deterrent to an officer's contacting the judge about sentencing. After all, if the
officer really opposes the plea, he will not be too upset if his interference in the
process results in the plea's withdrawal.
★★★
These three examples show how the police can use their leverage over the
prosecutor to influence the plea-bargaining process even when the prosecu-
tor-the one ultimately in charge of the plea decision- disagrees with them.
The officer can appeal to his own superiors or his union representatives for
help in pressuring the prosecutor. The officer can use the media to pressure the
prosecutor. And the officer can complain directly to the sentencing judge. The
biggest constraints on using these pressure tactics are not doctrinal, but rather
political. There is an abiding sense that officers who get involved in plea bar-
gaining are poaching on prosecutors' territory. Each of these pressure tech-
niques runs the risk of upsetting the balance of power within the prosecution
team and bringing down condemnation on the officer responsible for the
breach of protocol. Yet officers employ these pressure techniques, nonetheless,
because there is just too much at stake in the plea-bargaining process for them
to cede all control to their prosecutorial colleagues.
III. IMPLICATIONS OF POLICE INVOLVEMENT IN PLEA BARGAINING
By this point, we have seen the outlines of the taboo against police in-
volvement in plea bargaining. We have also seen this taboo violated by police
involvement. The question remains, however: what are the consequences of
greater police involvement in plea bargaining? Part III explores the implica-
tions for plea bargaining, policing, and the academic literature.
A. The Effect on Plea Bargaining
In a world where police officers are involved in plea bargaining, the plea
process would differ from one in which prosecutors have exclusive control over
pleas. The more involved officers are, the less of an independent check the
prosecutor can provide against improper police action. Bad arrests would be
more likely to become bad convictions. Also, as officer involvement increased,
there would be situations where the interests of the officers in setding a case
would systematically diverge from the interests of the prosecutor in setding the
case. The more influence the officers have, the more likely they are to get their
1769
way in such situations. These diverging interests include cases in which the po-
lice want to avoid the discovery process because it would reveal instances of po-
lice misconduct and cases in which departments may not want their officers
cross-examined, for fear of what the cross-examination would bring to light.
These cases of diverging interests might also include times when the police
want to lock down a guilty plea, rather than take their chance at trial, because
the guilty plea would prevent the defendant from bringing a civil rights suit
later on.
More broadly, police influence on plea bargaining might change the market
price for a plea to a particular crime. Officers' views of what a case is worth may
differ from prosecutors' views because of their differing backgrounds, moral
and legal sensibilities, and resource constraints. To the extent officers have
more of a say, their influence would change the ultimate terms of the plea
agreement. In short, police involvement in plea bargaining could upend the
delicate equilibrium of plea negotiations in a number of ways because it im-
ports a new set of institutional interests into the equation: the police's interests.
1. Bad Arrests Become Bad Pleas
Prosecutors who advocate the separation of powers in plea bargaining often

do so because they think prosecutors have a duty to act as checks against police
overreach. In this separation-of-powers model, the police may make an arrest
for improper motives or based on faulty evidence, but before anyone can be
punished as a result of these allegations, there is an opportunity for independ-
ent review by a prosecutor not involved in the police misconduct. Where the
prosecutor finds the police action was inappropriate, she can prevent it from
sending the defendant to prison by dismissing the charges or offering a plea
with a reduced punishment more in line with the crime.
The prosecutor's ability to oversee, restrain, and correct police misconduct
would be greatly diminished, however, if the police gained power in the plea-
bargaining process. Or so the argument goes. If police officers are able to exert
their influence on the plea decision, there is a greater risk that they will use this
influence to convert an improper arrest into an improper conviction. In the
process, the prosecutor's independent review would shrink to nothing. In this
way, greater police influence has the potential to transform the problems asso-
ciated with bad arrests and investigations into problems that afflict adjudica-
tion, as well.
1770
COPS AND PLEAS
2. Brady, Giglio, and Civil Rights Litigation
Police officers have a variety of institutional interests that might lead them
to seek a guilty plea- and a particular kind of guilty plea, at that- in cases
where a prosecutor would not otherwise be inclined to do so. The typical take
on the police view of plea bargaining is that officers always oppose pleas, while
prosecutors embrace the pleas as a necessary part of the administration of the
justice system. No doubt, police involvement in plea bargaining could play out
along these lines, with police doing their utmost to block plea deals or, in what
amounts to the same thing, to demand the most severe terms possible from
every defendant.
But there may also be times when the police are more inclined than the
prosecutor to settle a case. Where going to trial would lead police misconduct
to be disclosed through discovery, pretrial motions practice, Brady and Giglio
disclosures, or cross-examination, police officers may want to settle the crimi-
nal case to prevent embarrassing information about the police agency from
coming out.163 If an officer does not have to testify at a trial, there is no need to
provide information that would impeach his credibility, such as information
about his history of misconduct. Likewise, if an arrest was effected through an
illegal surveillance program or with excessive force, settling the case by guilty
plea would spare the police agency from having its practices publicly exposed at
trial.164 Were the prosecutor the only one whose interests mattered, the threat
of police embarrassment might not register. But if police have more influence
163. Brady v. Maryland , 373 U.S. 83 (1963), and Giglio v. United States , 405 U.S. 150 (1972), re-
quire prosecutors to disclose any information that could be favorable and material to the de-
fendant, including evidence of police misconduct. See Jonathan Abel, Brady's Blind Spot , 67
Stan. L. REV. 743 (2015).
164. See, e.g., Cal Gov't Code § 945.3 (West 2016) ("No person charged by indictment, infor-
mation, complaint, or other accusatory pleading charging a criminal offense may bring a civ-
il action for money or damages against a peace officer or the public entity employing a peace
officer based upon conduct of the peace officer relating to the offense for which the accused
is charged, including an act or omission in investigating or reporting the offense or arresting
or detaining the accused, while the charges against the accused are pending before a superior
court.") ; John Kaplan, Amerìcan Merchandising and the Guilty Plea: Replacing the Bazaar with
the Department Store, 5 Am. J. Crim. L. 215, 218 (1977) ("Too often the exclusionary rule,
which is expected to bring to light police violations of constitutional rights, does not get a
chance to operate because the offer made in a plea bargain is too good."); Michael E. Tigar,
The Supreme Court, iç6ç Term- Foreword: Waiver of Constitutional Rights : Disquiet in the Cit-
adel, 84 Harv. L. Rev. 1, 21 (1970) ("Such an approach seriously weakens the deterrent effect
of exclusionary rules and other procedural protections since police and prosecutors need not
worry about their conduct in the seventy to ninety percent of cases where judgment is en-
tered on a plea of guilty.").
1771
over the negotiations, there would be a greater potential for pleas that help the
police department to save face, even if the pleas otherwise do little for the pros-
ecutor.
A variation on this face-saving interest can be found in the conditions the

prosecutors set for the guilty plea. Where there is potential that the criminal
defendant will sue the police department later on for civil rights violations, the
police might have a particular interest in obtaining a guilty plea- even to re-
duced charges - if the plea contains a promise that the defendant will not bring
any future lawsuit resulting from the case. The U.S. Supreme Court has signed
off on the constitutionality of incorporating an agreement not to sue into the
guilty plea.165 This civil litigation context is another example where the police
would have an interest in settling the case that the prosecutor would not oth-
erwise have had on his own.
Similarly, the police may want a guilty plea because the conviction itself
protects against some civil rights litigation.166 Bill Amato, an attorney for the
Tempe Police Department in Arizona, referred to the U.S. Supreme Court's de-
cision in Heck v. Humphrey for the rule that a federal civil rights claim for dam-
ages cannot prevail if the suit's success would imply that a criminal conviction
is invalid.167 "[T] hat's not something that prosecutors necessarily know," Ama-
to said, so "[I] went to my city prosecutor's office one day without any case
pending" and told the prosecutor about this doctrine: '"Don't plead it to the
trespass, plead it out to the aggravated assault."168 In this way, the decision
about what charge to plead a defendant to has implications for the police de-
partment's civil liability- implications that the prosecutor likely would not
165. Town of Newton v. Rumery, 480 U.S. 386 (1987) (addressing waiver of civil suit in ex-
change for dropping charges) ; see 3 Sheldon H. Nahmod, Civil Rights and Civil Liber-
ties Litigation: The Law of Section 1983 § 9:39 (3d ed. 1991); Kreimer, supra note 126, at
853 (opposing release-dismissal agreements). Beth Murano, an attorney for the Lee's Sum-
mit Police Department and a former prosecutor herself, said that she has seen in prior em-
ployment that "sometimes the case gets dismissed and the defendant's asked to sign a re-
lease." Telephone Interview with Beth Murano, supra note 37. But see Telephone Interview
with Sean Smoot, supra note 90 ("State's attorneys got their own job to do ... . They're not
representing the officer. Many, if not most- if not all - the prosecutors I know, if an officer
came to him and said, 'Hey, can we drop this case because this guy's going to sue me for civil
rights violations,' they'd say, 'Sorry, but no.' Because the fact of the matter is that a lot of
those types of complaints are made against officers and are later unsubstantiated, and it real-
ly is the [criminal defendant] trying to position themselves in a better way for the criminal
case.").
166. See Kreimer, supra note 126, at 852-53.
167. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

168. Telephone Interview with Bill Amato, supra note 105.
1772
COPS AND PLEAS
know, or care, about if the police were not involved in the negotiation process.
Another example where police may push for a particular plea offer is in cases
involving officers as defendants. As noted earlier, certain guilty pleas will strip
officers of their law enforcement credentials and pensions, while others will
not.169
The takeaway from this discussion is that the police may have their own in-
terests in settling cases without trial, distinct from prosecutors' interests. If the
police have greater influence in the plea-bargaining process, these self-
interested reasons are more likely to affect the plea negotiations than if prose-
cutors retain complete control.
3. The "Market Price " of a Guilty Plea
The consensus of the academic literature is that plea bargaining takes place
in the shadow of trial, with prosecutors and defense attorneys assessing the ex-
pected value of a case at trial and then negotiating a plea that benefits both
sides.170 The prosecution gains from the certainty of a conviction without hav-
ing to invest resources in a trial; the defendant benefits from a sentence that is
presumably less than what he could expect if the case went to trial. The lower
the sentence offered to the defendant, the better the benefit of the bargain, and
the more likely the defendant is to accept it. The lynchpin of the plea negotia-
tions, then, is the parties' assessments of what the case is worth.
But throwing officers into the mix could change the prosecution team's as-
sessment of what a case is worth. That is because prosecutors and police offic-
ers may have systematically different ways of thinking about cases. Empirical
testing would help to answer this question definitively. But there is good rea-
son to suspect that officers' and prosecutors' divergent backgrounds would lead
them to analyze cases differently. Prosecutors' expertise is in assessing how the
facts of a case match up to the elements of a crime. This assessment requires a
knowledge of the legal doctrine governing criminal procedure and evidence.
The prosecutor's assessment of the expected value of a case takes into account
legal considerations, such as the likelihood that certain evidence would be ex-
cluded or certain jury instructions denied. This assessment also likely draws on
prosecutors' experiences presenting cases to juries.171
169. See Telephone Interview with Rod Kusch, supra note 107; discussion supra Section II.B.2.
170. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial , 117 Harv. L. Rev. 2464, 2464-
65 (2004) (summarizing leading citations for the shadow-of-trial theory).
171. This discussion dovetails with the discussion of "comparative institutional competence." See
Telephone Interview with Shannon Presby, supra note 2 ("I wouldn't want the police officers
1773
Police expertise, on the other hand, does not derive from this legal back-
ground; rather, officers' comparative expertise is in their familiarity with the
facts of the case, their ties to the victim or the victim's family, and their assess-
ment of the credibility of the witnesses, to name just a few examples.172 Offic-
ers can also contextualize the defendant beyond the facts of the crime. Some
prosecutors, like Arizona prosecutor Mike Dynes, welcome hearing this "very
helpful" information from police officers. "If there is somebody who is a prob-
lem, that's generally when I'll hear about it," Dynes said.173 "Generally what it
would be [is], '[We] caught so and so trespassing and looking in windows,'
and they suspect that usually he is burglarizing homes."174 This additional in-
formation would be reason to make the plea offer more punitive. Dynes said
officers are also frequently helpful in domestic violence cases, where they can
say, "'[W]e've been called to that house fifteen times in the last month, and
when we get there everybody said nothing happened.'"175 Officers may also
know of mitigating information - the defendant's mental health status, his his-
tory of being abused, or other humanizing factors - that could cause prosecu-
tors to lessen the punishment they seek. For better or worse, officers' informal
comments about the defendant could thus serve similar functions to a proba-
tion officer's pre-sentence report, by giving a holistic account of the defendant's
culpability. The downside of all this, of course, is that a defendant might end
up receiving a more punitive sentence based on such "facts," which have never
been proven true and which the defendant has never been given the opportuni-
ty to contest (because officers and prosecutors discussed the facts behind closed
doors).
to be the people who decide what the charges are and whether or not to charge
they're not lawyers, and they're not going to prosecute the case, and they don't have the ex-
perience of presenting a case to a judge [and jury]."); supra notes 59-60 and accompanying
text. Nor are such legal diagnostic skills apparently taught in police academy classes or in
on-the-job training. See E-mail from Lyla M. Zeidan, supra note 84.
172. A number of officiais mentioned the usefulness of this additional information about defend-
ants. Telephone Interview with Elsa Seidel, supra note 81 ("Officer[s] have gone out of their
way to tell me, 'This guy was really cooperative. I really think he was left holding the bag. I
think he deserves a second chance.' Sometimes they come in, they write a note and say, 'This
guy was really, really difficult to deal with and was hateful and was screaming and yelling
about how he is going to kill my family.'") ; Telephone Interview with Mike Whalen, supra
note 51 ("The court officer, [be] cause they see every case that comes through, they know
who the frequent flyers are ... . [S]omebody had a mental health issue .... They're in a
pretty good place to see what's going on with that person generally.").
173. Telephone Interview with Michael Dynes, supra note 154.
174. Id.
175. Id.
1774
COPS AND PLEAS
But even where prosecutors are not receptive to hearing facts outside of the
case, these facts may still shift the terms of the plea agreement if they are per-
suasive to the police and the police have a chance to influence the prosecutor.
To the extent prosecutors and police officers have systematically different ways
of analyzing a case's value - differences that would be repeated over numerous
cases - the involvement of police officers in plea bargaining could shift the
prosecution team's offers for particular types of crime, thus altering the market
price for pleas. Whether police involvement would shift the market toward
more severe, or more lenient, punishments is unknown. At the very least,
though, greater involvement by the police in calculating cases' worth would
create further uncertainty in the market for plea bargains.
More speculatively, police and prosecutors may come to different values for
a case not only because of methodological differences - i.e., legal versus factual
analysis - but also because the two parts of the prosecution team may have
different moral or cultural views of culpability. These differences, too, could
affect the price of a plea. In this regard, the common assumption is that police
officers are more punitive than prosecutors and more eager for stiffer punish-
ment.176 If this assumption is correct, police involvement in plea bargaining
could make plea bargaining costlier for defendants. And there certainly are rea-
sons to believe officers would be more punitive than prosecutors. Officers have
direct, unfiltered experience with the defendant, the victims, and the witnesses.
They see firsthand the impact of the defendant's crimes. They are the ones
most likely to run into the defendant on the street again after she has served
her term. All of these factors could explain why police would be more inclined
than prosecutors to seek tougher punishments in plea bargaining.
But there are also reasons to suspect the opposite. One study, for example,
gave hypothetical cases to prosecutors and officers and found:
[W]hen the police and prosecutors who recommended [that] the case
be plea bargained were compared, the police were twice as likely to rec-
ommend that the charges be reduced, twice as likely to recommend
straight probation, and almost half as likely as the prosecutors to rec-
ommend a severe sentence (five years or more).177
176. This assumption is related to the notion that police officers would always oppose plea bar-
gains. See supra Section I.A.
177. McDonald, supra note 15, at 205.
1775
More anecdotally, William Stetzer, the Charlotte prosecutor who invited

police input at the plea-bargaining roundtable, said disagreements at the
roundtable had not broken down along prosecutor-police lines.178
And then there is this: a Florida study looked at roughly one thousand cas-
es randomly assigned to an experimental program that required police in-
volvement in plea bargaining, and found that police influence had no effect on
the ultimate terms of the plea agreement.179 So maybe there would be no effect
at all on the market price. Again, though, even if police officers do not differ
from prosecutors in any systematic way, the influence of the police in plea ne-
gotiations injects further uncertainty into the plea-bargaining process.
Police involvement has the potential to change not just the result of the ne-
gotiations, but also their feel. When it is just the prosecutor and defense attor-
ney negotiating, the discussion is one between lawyers. Adding the police to
the discussion could change the dynamics in several ways, depending on how
openly and actively the police become involved in the negotiations. First is the
potential cultural effect. "You don't want law enforcement involved in plea ne-
gotiations because things come out during plea negotiations- you need the de-
fense to feel free to say things that they're trying to say to sway your opinion,"
explained Kristen Beedle, a former prosecutor who now works as an attorney
for the San Diego Sheriff's Department.180 "The defense is not going to do all
[those] things with a potential trial witness sitting in the room."181 Beedle add-
ed that, in an atmospheric sense, "bringing guns to a lawyer discussion, is not
really conducive to that process [of negotiating]."182
The second way police involvement might change the feel of the plea nego-
tiations is a matter of game theory. With the police officer involved in the nego-

179. Wayne A. Kerstetter, Police Participation in Structured Plea Negotiations , 9 J. Crim. Just. 151,
163 (1981). The court system in Miami-Dade randomly assigned roughly 1,000 cases to an
experimental program of settlement conferences. The prosecutor, defendant, victim, and po-
lice officer were invited to participate in the setdement conference, along with the judge. Re-
searchers kept statistics on who participated, how much they said, what they asked for, and
whether their presence affected the resolution of the case. Beforehand, prosecutors, defense
attorneys, and judges predicted that including the police in the discussions would be prob-
lematic because they would make intransigent demands for severe punishments. But that
was not how they behaved in the conferences, and their presence did not quantifiably
change the outcome of the pleas. Id. Admittedly, though, the dynamics in court-sponsored
settlement conferences might be different from what would take place if prosecutors and po-
lice were speaking by themselves about the plea.
180. Telephone Interview with Kristen Beedle, supra note 57.
181. Id.
182. Id.
1776
COPS AND PLEAS
dations, the prosecutor may have an opportunity to extract further concessions

from the defense attorney by claiming that the police are pushing him to get a
stiffer sentence.183 In this way, police involvement- or, even just the specter of
police involvement- would strengthen the prosecutor's hand in negotiations.
At the same time, if the defense attorney is savvy enough, she can play the same
game. "If you're the defense attorney, you'd say, ťI deposed Officer Jones and I
don't think he'd have a problem [with a lower plea],"' said William J. John-
son.184 Cam Selvey of the Charlotte police said defense attorneys sometimes
consult with the police for the bargaining advantage it may convey on them
later on: "We're going to do this, what do you think about that? Are you okay
with that?"185 If the officer finds the defense suggestion acceptable, the defense
attorney can use that later on to persuade the prosecutor to take the deal.
B. The Effect on Policing
Police involvement in plea bargaining would have an immediate impact on

the negotiation process, as discussed above. But, beyond this impact on plea
bargaining, police involvement in the process would also have an impact on po-
licing itself. If police became more invested in the plea-bargaining process, and
thus in the outcome of their cases, there would be the potential for a funda-
mental change in policing practices, one that focuses more on court outcomes
and less on street-level enforcement statistics. In the current system, police
officers have little incentive to care about what happens to their cases once they
turn the cases over to the prosecution. Nor are they generally given much influ-
ence on how the cases end up in court. As a result, police enforcement activity
has embraced actions that mete out street justice without any concern about
what will happen to the court case that results - or often does not result- from
the police action. Stop-and-frisk, illegal searches, improper seizures, excessive
force in making arrests - all manner of ultra vires actions are taken without
concern for the criminal case that follows. This Section explores a potential
183. Woodham, an attorney for the Tampa Police Department, described the dynamics in the fol-
lowing way: "Many times, it's like a hot potato, depending on who the defense lawyer is -
the defense lawyer approaches the detective: 'Help my guy out, come on!' Cop: 'I can't, the
state attorney makes the plea offer.' Then, defense lawyer to state attorney: 'Give my guy 3
years, come on!' State Attorney: 'I can't do that. The detective will never agree to that.'" E-
mail from Laurie Woodham, supra note 77. Johnson of NAPO was skeptical of the very
premise and said it would be "a remarkable admission by the prosecutor" to say things were
out of his hands: "The cops, nah. The defense attorney is like, 'Come on.'" Telephone Inter-
view with William J. Johnson, supra note 101.

1777
benefit of getting officers to be more invested in the outcome of their cases.

Such investment could lead to cleaner policing. Or not. Perhaps the effect
would be the opposite, with officers using their newfound power over case out-
comes to give even more bite to illegal policing practices that already exist.
Let's start with the potential for negative consequences. On the surface, po-
lice involvement in plea bargaining could worsen already abusive policing prac-
tices. As discussed in Section III.A.1, the officer's newfound power over plea
bargaining could allow her to more easily convert improper arrests into im-
proper pleas. In a negative feedback loop, police could use this increased power
to make their policing practices even more aggressive and threatening. But the
dynamic could also cut in the other direction. If officers had more influence
over plea bargaining, they might become more invested in the outcomes of
their cases in court. And if they cared more about the court outcomes, they
might logically prefer to refocus their investigative energies on cases that would
result in high-quality convictions, rather than spending their time on proxy
crimes, pretextual stops, and "junk arrests" never destined to hold up in court.
In the present state of affairs, officers have "the power to punish citizens for
short periods of time without prosecutorial or judicial supervisor," as one case-
book described it- and they use this power even when they know that these
abuses of power will doom any court case that follows.186 As another author
noted, "the goals of prosecutors and police officers are fundamentally different:
Police want to restore order and assert authority, and they may be less con-
cerned with securing convictions."187 A whistleblowing Baltimore detective re-
counted as much in a recent New York Times op-ed, where he described what
happened when he complained that a search lacked probable cause: "A sergeant
pulled me aside and said I needed to mind my business. 'We don't care about
what happens in court,' he told me. 'We just care about getting the arrest.'"188
Such harassing police practices, not targeted at convictions, are a major
source of police abuses.
On the margins, giving officers more control over plea bargaining could
channel police energy away from meting out rough justice on the street and
toward a more orderly and procedurally protected administration of justice in
186. Ronald Wright & Marc L. Miller, Criminal Procedures 157 (1999).
187. Sanford C. Gordon & Gregory A. Huber, The Political Economy of Prosecution, 5 Ann. Rev. L.
& Soc. Sci. 135, 150 (2009); see also McDonald, supra note 15, at 212 ("Most of what the po-
lice do with their time involves order maintenance rather than law enforcement.").
188. Joseph Crystal, When Police Are Poor Role Models for One Another, N.Y. Times
(Aug. 15, 2016), http://www.nytimes.c0m/2016/08/15/0pini0n/when-p0lice-are-p00r-r0le
-models-for-one-another.html [http://perma.cc/FR9K-E74N] .
1778
COPS AND PLEAS
the courts.189 Likewise, with more influence over adjudication decisions, police
might feel more confident about investing resources in worthwhile cases, with-
out worrying that such investment could be squandered by a prosecutor's im-
provident decision down the line to plea out a case too cheaply.
Admittedly, there are a lot of uncertain inferences in the above chain of
events leading from greater police influence over plea bargaining to a reduction
in abusive policing practices. The point of this chain of inferences is not to say
that police misconduct could be completely eliminated if only police were more
involved in plea bargaining- without further empirical research, it is impossi-
ble even to know whether policing would become cleaner or dirtier if officers
were more invested in case outcomes, and it would probably depend on the
particular officers and agencies. Rather, the point of discussing the potential,
positive effects from police influence on plea bargaining is to challenge the ex-
isting paradigm about the need to keep police far away from plea bargains.
The separation-of-powers rationale supporting this distance assumes that
keeping the police out of plea bargaining keeps police power in check. But this
may be precisely the opposite of what is needed. Officers' alienation from the
adjudication process may be part of the reason officers act on the street without
considering what those actions will do to their cases in court. Officers' lack of
interest in case outcomes means not only that they may be willing to fritter
away enforcement time on activities that do not lead to worthwhile cases, but
also that large swaths of Fourth, Fifth, and Sixth Amendment law are rendered
toothless. The remedy for many of these constitutional violations is the exclu-
sion of evidence from trial. But if officers do not care about the outcome of the
case at trial, then the threat of excluding evidence in the case is no threat at all.
Only by getting officers invested in the outcomes of their cases in court can the
Fourth, Fifth, and Sixth Amendment exclusionary remedies have a deterrent
effect on police action. Giving officers some influence in the plea-bargaining
process would hopefully be a step in the direction of inducing them to care
about these case outcomes.
In this vein, it is worth addressing the mixed messages officers hear about
whether they should care about the outcomes of their cases. An officer who
lobbies the prosecutor about a plea may sometimes be faulted for being too
zealous, even as an officer who does not care at all about the outcome of the
189. The lack of police incentives to conduct arrests with an eye towards trial has long been iden-
tified as a problem that needs fixing. In a 1982 study entitled Police-Prosecutor Relations in the
United States , the authors recommended, among other things, "redefining the police role in a
case as ending with conviction rather than arrest and, accordingly, developing incentives
that would give the police a stronger interest in making all cases they refer for prosecution as
strong as possible ..." McDonald, supra note 95, at vii.
1779
case may be accused of policing without any interest in guilt or innocence. This
is more than a messaging problem. It reflects a conceptual tension over how the
prosecution team is supposed to fit together. Is an officer's decision to make an
arrest deemed right or wrong independendy of what the prosecutor decides to
do with the case? If the officer knows the prosecutor will not pursue the case, is
the officer still justified in making the arrest where he believes he has probable
cause?
Finally, it should be noted that if the overarching goal is to get officers to

care about their cases, a significant change must take place in the way law en-
forcement officers are trained and evaluated. On the training front, officers re-
peatedly noted the advice not to track the outcome of cases because it would be
too upsetting. "Just make the arrests," said Steadman Stahl, a police union
official.190 "[Y]ou have a relationship with your state attorney. They are king
whether a case goes forward, [or] gets nolle prossed."191 Eric Daigle, a police
detective turned lawyer, said his class in the police academy was given a similar
warning: "'Do your job. Keep your head down. Don't follow your case because
you'll get discouraged.'"192 Other police officials give the same advice.193
Furthermore, crushing caseloads make it even harder for officers to care
about case outcomes. "I didn't really track my cases and keep up with them
once they went to the courthouse because I wasn't the complainant," said Bob
Armbruster, a former detective in Texas, who is now a union lawyer.194 "It's not
that you're apathetic, it's just that you have daily things to deal with." "Having
worked both sides of it," said Smoot, an Illinois union official, "I think it really
depends a great deal on what the role of the officer was in the case and just how
big of a case there is."195 Huth, the Kansas City police official, noted that
"[s]ome officers see themselves [as], ťWe tag 'em, we bag 'em, and we move
on.'"196 The motivation to care about case outcomes and the reasons not to care
about case outcomes, he added, are part of an inherent tension in the personali-
ties of police officers: "The type of person that you need to do law enforce-
190. Telephone Interview with Steadman Stahl, supra note 60.

191. Id.
192. Telephone Interview with Eric Daigle, Attorney & Police Consultant (Mar. 17, 2015).
193. But see Telephone Interview with Andy Leonard, supra note 64 ("I think police need to be
involved in following up on their cases because it shows an ownership [of] their case").
194. Telephone Interview with Bob Armbruster, Attorney, Hous. Police Officers' Union (Mar. 13,
2015).

1780
COPS AND PLEAS
ment, in general, is a very high-spirited, alpha, protective, aggressive per-

son."197
A further impediment to caring about cases is institutional. Police depart-

ments track the number of stops, tickets, arrests, and closed cases their officers
produce, but they do not track information about the court outcomes of these
cases. "The only thing that we track [in terms of outcomes] are DWI arrests
and dismissals and those are required by law," explained Ray, an attorney for
the Raleigh Police Department.198 Case outcomes just do not seem to matter to
police departments - even to departments that value statistics of other sorts.
For example, one study found that "[i]n the opinion of 180 officers from New
York City and Washington, D.C., the number of arrests that result in convic-
tion is the least important to their supervisors of 16 criteria that their supervisors
might use to rate individual officer performance."199 Yes, compiling statistics on
what happens in court would be logistically difficult. And, yes, it would poten-
tially penalize an officer for the prosecutor's decision to drop a case - or the
prosecutor's error in bungling a case. But the failure to track case outcomes
means that officers get the same credit for poorly investigated, even bogus, ar-
rests as for arrests that are thoroughly investigated and for which the underly-
ing crimes are significant enough to merit investigators' time. That is not much
of an incentive to produce cases that will fare well in the court system.
The upshot of this discussion: officers currently face a number of impedi-
ments to caring about the outcomes of their cases. This indifference may be
connected to abusive policing practices and/or shoddy police work, both of
which are drains on the criminal justice system and on society. By giving offic-
ers more of a say in plea bargaining, prosecutors could help focus police atten-
tion on work that would produce high-quality cases. In so doing, prosecutors
could help deter some of the most virulent policing practices, which result from
police actions that are completely untethered from any adjudicative purpose.
Focusing police effort on winning cases in court could realign police interests
with the constitutional protections already in place for ensuring that court pro-
ceedings are conducted fairly.
This refocusing of efforts would require a major cultural shift in which new
police recruits are trained to care about the outcomes of their cases and police
departments begin to evaluate officers based on whether they actually produce
court- worthy cases. The involvement of police officers in plea bargaining could
197. Id.
198. Telephone Interview with Ashby Ray, supra note 44.

199. McDonald, supra note 15, at 214 n.8 (emphasis added).
1781
be part of a much-needed shift in the focus of police activity, away from street
justice and toward court adjudication.
G The Effect on the Literature
The involvement of police officers in plea bargaining has several implica-

tions for the academic literature on plea bargaining, as well as for the academic
literature on the prosecution team. In chief, the existence of police involvement
in plea bargaining undermines the idea that the prosecutor has a monopoly
over the prosecution team's adjudicative powers, and it challenges the notion
that the prosecution team can be controlled by controlling the prosecutor
alone.
In recent years, legal scholarship has come to consider the prosecutor to be

the ascendant figure in the criminal justice system.200 This exalted status -
above defense counsel, judge, and jury- has come about in large part because
of the prosecutor's control over the plea-bargaining process. The power to de-
cide on plea offers, along with the control over what charges to bring in the
first place, make the prosecutor the central node of the justice system. But the
fact that police are involved in plea bargaining, an issue this Essay has dis-
cussed in depth, challenges the notion of the prosecutor's ascendancy. While
the prosecutor makes the ultimate decision on what plea to offer, the police
officer can influence that decision through a range of methods. In this regard,
the police officer is a check on the prosecutor's power over plea bargaining and
over the criminal justice system more generally.
This Essay's findings also have implications for another aspect of the aca-
demic literature: the scholarship on the separation of powers in criminal law.
Building on the perception of the prosecutor as the chief figure in the criminal
justice system, scholars have worried about the mixing of executive and adjudi-
200. William J. Stuntz, The Collapse of American Criminal Justice 295 (2011) (ttOver the
course of the past few decades, prosecutors have replaced judges as the system's key sentenc-
ing decisionmakers, exercising their power chiefly through plea bargaining. That prosecuto-
rial power is unchecked by law and, given its invisibility, barely checked by politics."); Laura
I. Appleman, The Plea Jury , 85 Ind. L.J. 731, 733-34 (2010) (lamenting that "the chronic im-
balance of prosecutorial power over the last thirty years has shrunk the roles of the defend-
ant, the defense attorney, and even the court to small ones that are easily pushed aside");
Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability , 157 U. Pa. L. Rev.
959, 960 (2009) (MNo government official in America has as much unreviewable power and
discretion as the prosecutor."); Janet Moore, Democracy and Criminal Discovery Reform After
Connick and Garcetti, 77 Brook. L. Rev. 1329, 1374 (2012) (describing prosecutors as "the
most powerful players" in the justice system and citing a variety of sources to support this
assertion).
1782
COPS AND PLEAS
cative powers in the prosecutor's hands. Elaborate prophylactic measures have

been proposed to keep the prosecutor who was involved in investigating and
charging the case from being the one to sign off on the final plea. The idea is
that a prosecutor who has been heavily involved in the investigation and charg-
ing of a case is not capable of being fair and impartial when it comes to decid-
ing on the appropriate plea. This separation-of-powers literature goes to great
lengths to separate the prosecutor's dual roles, executive from judicial. But the
involvement of police officers in plea bargaining destabilizes this construct
about the separation of powers. Even if prosecutors were able to strike the per-
fect balance between their own executive and judicial functions, there would
still be the problem of the police - consummate executive-branch officials -
having a say over the plea. Whatever equilibrium the prosecutor's office estab-
lished between executive and judicial functions could be disrupted by police
decisions to pressure prosecutors on some cases but not others. The involve-
ment of police officers in plea bargaining thus raises questions about the utility
of any separation-of-powers solution that attempts to address the problem only
with respect to prosecutors and not with respect to police.
Similarly, some scholars have suggested reforming inequities in the crimi-
nal justice system by standardizing prosecutorial policies within an office.201
Through centralization; normalization, and routinization, prosecutorial super-
visors could ensure that line-level prosecutors were all making similar policy
decisions on their cases. A strong office culture could promote probity in prose-
cutorial functions. Rather than enforcing prosecutorial norms externally, this
method would use institutional design to ensure the prosecutors all stayed in
line. But this proposed reform suffers from the same problem that plagues the
separation-of-powers advocates. If police officers are involved in plea bargain-
ing, even a prosecutor's office in which the line prosecutors all acted in a uni-
form manner would have to contend with the uneven influence of the police -
influence that would intrude into some cases while leaving other cases un-
touched. The outside influence of the police could upend whatever systematic
administration of justice the prosecutor's office had decided to pursue.
In short, the root problem for these and other areas of the academic litera-
ture is that they do not sufficiently account for the role that police officers play
in challenging the prosecutor's hegemony over the process of adjudication.
201. Bibas, supra note 200, at 1003 ("[Prosecutorial self-regulation can and does work well. In
other words, head prosecutors can align their subordinates' actions with principals' interests
by writing down and enforcing procedural and substantive office policies."); Ronald F.
Wright, Sentencing Commissions as Provocateurs of Prosecutorial Self-Regulation , 105 Colum. L.
Rev. 1010, 1034-36 (2005).
1783
CONCLUSION
Police involvement in the plea-bargaining process has its virtues and vices.
Some practices are obviously troubling. An officer who makes a bad arrest
should not have the power to push for a guilty plea that would validate his im-
proper arrest. Nor should officers be able to use their influence on plea bar-
gaining to settle scores with defendants they personally dislike. And guilty
pleas that officers push so that they can insulate themselves from future civil
rights litigation should also be seen as an abuse of the system. Like guilty ver-
dicts, guilty pleas should be sought because the defendant violated the law, not
because the plea would benefit some proxy interest of the police officer or po-
lice agency. These are the easy cases when it comes to outlining improper police
influence on plea bargaining.
More difficult is the task of when, if ever, police influence would be desira-
ble. To a large extent, answers to this question depend more on one's theories
about guilt and punishment than on one's theory about plea bargaining itself.
For example, some separation-of-powers advocates argue that the adjudicative
decision maker- in this case, the prosecutor- should not decide the defend-
ant's guilt or punishment based on any facts that are not "relevant" to the case.
By relevant , these advocates mean facts connected to one of the crime's ele-
ments, rather than facts about who the defendant is or what impact he has had
on people outside the four corners of the charges. Such separation-of-powers
advocates would blanch at the thought of an officer's telling the prosecutor that
the defendant, though charged with a run-of-the-mill burglary, is actually a
menace to the community and should get as stiff a punishment as possible.
They would also be concerned, presumably, if the officer conveyed facts about
the defendant's tough life that called for leniency. But maybe a more fleshed-
out, holistic account of the defendant and his actions is exacdy what prosecu-
tors need to make informed decisions about punishment. Indeed, this would be
similar, in a way, to how a capital jury hears facts in aggravation and mitigation
to decide whether to sentence a defendant to death. Depending on one's phi-
losophy on punishment, police influence in the form of extra-record facts about
the defendant is either very improper or very much desirable. The plea-
bargaining system itself can accommodate either philosophy.
Another reasonable fear about police influence is that it will mean less flex-
ibility for a prosecutor to give a lenient plea. Yet this fear assumes that police
officers are more punitive than their prosecutorial colleagues. If this empirical
assumption is wrong, then police influence on plea bargaining could actually
lead to more lenient pleas. Likewise, there is a concern that giving officers pow-
er over the plea-bargaining process will push them to convert questionable ar-
rests into guilty pleas. But there is also the potential, discussed in Part III, that
1784
COPS AND PLEAS
this influence over plea bargaining will incentivize officers not to waste their
time with junk arrests, instead focusing them on worthwhile cases. Ultimately,
it is hard to say whether police influence on plea bargaining is good or bad
without knowing the answers to these questions about how punitive the police
are or how they would respond to more autonomy over case outcomes. In this
way, one's theory about whether the police should be involved in plea bargain-
ing depends on a host of factors unrelated to the plea negotiation process.
Going forward, in thinking about what role police should play in plea bar-
gaining, what is needed is some combination of honesty and optimism. The
honesty part first: those who would attempt to build a wall between prosecu-
tors and police officers on plea bargaining are setting themselves up for disap-
pointment. Police officers have a deep, vested interest in being able to influence
plea outcomes, even if they choose to invoke this power in a scattershot man-
ner. Blanket rules preventing officers from getting involved in plea negotiations
are doomed to fail, just as blanket bans on prosecutors' ability to plea bargain
were easily circumvented.202 If officers want to influence a case, they are too
deeply enmeshed in the prosecution team to be kept from doing so. Now, for
the optimistic part: Instead of fighting an unwinnable battle against police in-
volvement in plea bargaining, society could embrace this involvement with the
hope that bringing officers into the plea-bargaining fold will reorient them to
the adjudicative process with all of its attendant procedural protections. This
would take a cultural shift, to be sure; it would have to begin with the way de-
partments evaluate their officers and then percolate down to promotions, train-
ing, and the police academy. Of course, this gamble might fail, and police and
prosecutorial abuses could become even more pernicious if officers had more
influence over plea bargaining. Some experimentation by the nation's thou-
sands of prosecutorial and police agencies would surely be welcome in answer-
ing these questions.
Even without such a culture shift, however, there are some changes that can
be put in place immediately. At a minimum, what is needed is transparency and
intentionality about the police decision to get involved in some plea negotia-
tions but not others. In some jurisdictions, there are formal guidelines dictat-
ing this involvement, but in the majority of jurisdictions, police involvement is
202. See , e.g., Teresa White Cams & John A. Kruse, Alaska's Ban on Plea Bargaining Reevaluated , 75
Judicature 310, 317 (1992) ("Although the prohibition of both charge and sentence bar-
gaining in most cases remains the official policy of the attorney general's office, charge bar-
gaining, but not sentence bargaining, returned to most areas of the state after about 1985.") ;
Robert A. Weninger, The Abolition of Plea Bargaining: A Case Study of El Paso County , Texas,
35 UCLA L. Rev. 265, 313 (1987) ("This study reinforces the notion that plea bargaining is a
permanent component of American criminal process . . .
1785
entirely ad hoc. Wherever a decision is left completely to the unguided discre-

tion of the officer or prosecutor, there is an opportunity for racism and other
prejudices to affect the criminal justice system. Do crimes involving female vic-
tims particularly spur officers to care about case outcomes? Are crimes involv-
ing African-American victims less likely to motivate a police officer to push for
a particular plea? It would be worrisome if this discriminatory pattern, seen in
the charging decisions in death-penalty cases, were motivating police involve-
ment in plea bargaining. Prosecutors, police agencies, and courts that see this
pattern unfolding should be very concerned about the police influence on plea
bargaining. Official department policies guiding officers' decisions on when to
contact prosecutors about pleas and what types of things to say would help
limit the capriciousness that may exist. Likewise, data on how often these con-
sultations occur would be helpful in understanding the dynamic.
One measure of how much work remains to be done in this area is the ab-
sence of a conceptual account of who should be allowed to influence plea deci-
sions in the first place. Victims have been given influence over the plea-
bargaining process by a wave of victims' rights statutes that entitle victims to
be informed about the progress of the criminal case against the accused and to
have a formal say at sentencing proceedings. However, the fact that it required
legislative action for victims to have a say is some indication that they may not
otherwise have been powerful players in the criminal justice system. Police
officers, on the other hand, are sufficiently powerful within the criminal justice
apparatus to use their position to influence plea decisions - and influence they
do. But what right do they really have to weigh in on these cases? They are not
victims or otherwise aggrieved parties, yet there is a sense in which their sweat
equity in working on the cases entitles them to á say in the cases' outcomes. But
is this sweat-equity theory enough to distinguish officers from city council
members or state senators who might want to press prosecutors to ask for a
particular punishment in a case? Politicians' influence on cases would be un-
seemly, but it is not abundantly clear why officers who are not victims have
more legitimate stakes in influencing decisions over guilt and punishment.
This is one of the many aspects of this topic where additional theoretical work
is needed.
★★★
The story of police influence on plea bargaining probes whether there are
any guidelines the prosecution team should consider as restraints on its own
actions. What sort of inner compass should prosecutors and police officers have
to ensure that their use of plea bargaining is just? This is a question about plea
bargaining, to be sure, but also about the operation of the prosecution team.
1786
COPS AND PLEAS
There are so many variables from officer to officer and from jurisdiction to ju-
risdiction that it is impossible to say what would occur if police officers had
more influence over plea bargaining. Indeed, this Essay has attempted to show
that the issue of police involvement in plea bargaining is one for which there is
no consensus among the line-level actors in the criminal justice system, much
less academics, courts, and legislators.
Contrary to conventional wisdom, police officers in many jurisdictions do
play a significant role in plea bargaining, even when prosecutors are resistant to
their input. In some jurisdictions, police are formally invited into the delibera-
tions about what plea to offer. In others, they are formally excluded from giv-
ing input. In still other jurisdictions, prosecutors and police officers have found
ways to discuss plea bargaining in an ad hoc, case-by-case manner. Formal con-
sultation, informal consultation, formal bans on consultation, and ad hoc ^ar-
rangements on consultation- each of these has its own virtues and vices, and
all of them are completely acceptable under statutory and case law.
Although criminal procedure has much to say about the nitty-gritty me-
chanics of how an officer can search a car or a prosecutor can select a jury, the
doctrine has strikingly little to say about the foundational question of how the
prosecution team is organized. This is true despite the fact that the structure of
the prosecution team has such high stakes for defendants, the court system,
and society. Should police officers and prosecutors be close collaborators in the
plea-bargaining process, or should the two parts of the team maintain a studied
independence from each other? Neither way is necessarily right, but both ways
hold significant consequences for plea bargaining and policing.
In the end, this is a story about the individuals and institutions of the pros-
ecution team who have a shared mission in the broadest sense - enforcing the
law- but have very different methods of, and interests in, pursuing that goal.
Prosecutors and police each have their own independent powers and yet they
are also dependent on one another. How they work through their own institu-
tional frictions could be an inspirational model for other governmental institu-
tions mired in gridlock and conflict. Likewise, the prosecution team's failure to
work through these issues could be just as foreboding.
1787

The Yale Law Journal Company, Inc. The Yale Law Journal

Uploaded by

Copyright:

Available Formats

The Yale Law Journal Company, Inc. The Yale Law Journal

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Yale Law Journal Company, Inc. The Yale Law Journal

Uploaded by

Copyright:

Available Formats

The Yale Law Journal Company, Inc.

Cops and Pleas: Police Officers' Influence on Plea Bargaining

Cops and Pleas:

II. POLICE INFLUENCE ON PLEA BARGAINING 1748

Part II is largely descriptive. It describes the range of systems for handling

I. THE SEPARATION OF POWERS WITHIN THE PROSECUTION TEAM

Police involvement in plea bargaining challenges the typical conception of

The literature in this area is underdeveloped in several ways. Academic ac-

5. See infra Section I.B.

i. Scholarship on the Police Role in Plea Bargaining

A healthy literature exists on the ways in which plea bargaining is influ-

Div. of Criminal Justice, Colorado Replication of the 1990 National Prosecutors

20. Uviller, supra note 15, at 24.

According to a law-and-society account, prosecutors' consultation with

The above views acknowledge some police involvement in plea bargaining,

22. Malcolm M. Feeley & Mark H. Lazerson, Police-Prosecutor Relationships: An Interorganiza-

25. Stanko, supra note 24.

about their lack of involvement and requires a rethinking of many assumptions

2. Scholarship on the Separation of Powers in Plea Bargaining

Apart from the literature on police involvement in plea bargaining, scholars

B. Prosecutor and Police Accounts of the Separation of Powers in Plea

Legislators and courts have provided no guidance about how independent

prosecutor's role, what they decide is totally up to them."48 Pearce's colleague,

Comparative institutional competence provides yet another justification for

55. Telephone Interview with Charles Huth, supra note 42.

What emerges from interviews with practitioners is a general consensus

II. POLICE INFLUENCE ON PLEA BARGAINING

A. Formal Systems of Police Influence

sions.62 The detectives, accompanied by members of the police chain of com-

62. Telephone Interview with William T. Stetzer, supra note 61.

69. Telephone Interview with Andy Leonard, supra note 64.

71. Telephone Interview with Cam Selvey, supra note 40.

work whether defendants should be sentenced according to the guidelines or

74. Telephone Interview with Steadman Stahl, supra note 60.

94. McDonald, supra note 15, at 210.

B. Informal Police Influence on Plea Bargaining

i. Factors Leading to Police Involvement in Plea Bargaining

103. Telephone Interview with Shannon Presby, supra note 2.

109. Telephone Interview with Cam Selvey, supra note 40.

114. Telephone Interview with Damon Mosler, supra note 92.

117. Telephone Interview with Rod Kusch, supra note 107.

2. Special Cases Where Police Plea Involvement Is Heightened

124. McDonald, supra note 15, at 215 n.18.

129. Telephone Interview with Damon Mosler, supra note 92.

C. Police Influence in the Face of Prosecutorial Resistance

Even when prosecutors refuse to consult, or agree to consult but refuse to

1 . Police Brass and Police Unions

Although union officials mostly focus on cases involving officers as victims

142. Telephone Interview with Sean Smoot, supra note 90.

-expresses-plea-deal-concerns-/9303i2i [http://perma.cc/S3U5-288F]. Commenters on the

Going to the media is not uncommon, but neither is it routine. In inter-

149. Telephone Interview with Mike Feinmel, supra note 82.

151. Telephone Interview with Gary O. Ingemunson, supra note 106.

III. IMPLICATIONS OF POLICE INVOLVEMENT IN PLEA BARGAINING

A. The Effect on Plea Bargaining

1. Bad Arrests Become Bad Pleas

Prosecutors who advocate the separation of powers in plea bargaining often

2. Brady, Giglio, and Civil Rights Litigation

A variation on this face-saving interest can be found in the conditions the