Brief filed: 06/09/2020
United States v. Flynn
D.D.C.; Case No. 1:17-cr-00232(EGS)
The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.
Jeffrey T. Green and Christopher S. Ross, Sidley Austin LLP, Washington, DC; David Oscar Markus, Markus/Moss PLLC, Miami, FL; Prof. Ricardo J. Bascuas, University of Miami School of Law, Coral Gables, FL.