Plea Bargains, Prosecutorial Breach, and the Curious Right to Cure, 89 Brooklyn L. Rev. __ (2024)

Check out my new article on prosecutorial breaches of plea bargains and the rather curious "right to cure."  The article exposes this doctrine as another pro-prosecutor tool of the courts, and provides ways for defense counsel to respond to prosecutorial breaches of the sentence concession component of plea bargains.  It will be published next year in the Brooklyn Law Review, but you can find a pre-publication draft of the article here.  All of my articles, organized by topic, are available here.  Finally, you can find the new article's abstract after the jump.

Article Abstract

When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. 

The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, it fails to un-ring the bell of the earlier prison recommendation, and it violates the defendant’s reasonable expectations under the plea deal. Further, when the judge dutifully sends the defendant to prison as the prosecutor originally recommended, it reeks of collusion and destroys the appearance of fairness. 

Most significantly, the cure doctrine creates a dilemma for the defense lawyer. If defense counsel does not object to the breach, the prosecutor will not be able to cure; therefore, if the judge sentences the defendant to prison, the defendant will receive a remedy on appeal—thanks to defense counsel’s “ineffectiveness” in not objecting. Conversely, if defense counsel objects and the prosecutor “cures,” the judge may still sentence the defendant to prison; however, the defendant will not receive a remedy— paradoxically, thanks to defense counsel’s “effectiveness” in objecting. 

This raises the question: Is ineffective the new effective? Perhaps, but intentional ineffectiveness carries risks for both defense counsel and the client. Therefore, this Article develops an alternative response to prosecutorial breach that protects both the defense lawyer and the defendant, is highly efficient, and is undeniably fair—even to the breaching party that created the problem in the first place.