Complete Volume for the Year 2018

1 1 William Shakespeare, Gertrude to Hamlet, “The lady doth protest too much, methinks.”

Hon. Dorothy Harbeck2 2 Dorothy A. Harbeck is the Eastern Regional Vice President of the National Association of Immigration Judges (NAIJ). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice. Judge Harbeck is also an adjunct Professor of Law at Seton Hall University School of Law in trial skills.

5 Stetson J. Advoc. & L. 1 (2018)

I. Introduction

An objection is generally an expression or feeling of disapproval or opposition. In court, an objection is a reason for disagreeing with some introduction of evidence.3 3 Black's Law Dictionary (2d ed. 1910). In most courts, the reasons and protocols for various objections are set forth in codified rules of evidence; however, the procedures in immigration courts are not so clearly defined since the Federal Rules of Evidence (F.R.E.) are not strictly applied in immigration courts. The rules of evidence applicable to criminal proceedings do not apply to removal hearings. Relevance and fundamental fairness are the only bars to admissibility of evidence in deportation cases.4 4 Matter of Interiano-Rosa, 25 I. & N. Dec. 264 (BIA 2010); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980). See also Simon Azar-Farr, A Synopsis of the Rules of Evidence in Immigration Removal Proceedings, 19 Bender's Immigr. Bull. 3 (Jan. 2014). Immigration courts are creatures of statute. They were created under the Immigration & Nationality Act (INA) as part of the Department of Justice (DOJ), specifically the Executive Office for Immigration Review (EOIR). The EOIR has a Practice Manual as well as guidance memoranda.5 5 The U.S. Department of Justice — Executive Office for Immigration Review (USDOJ-EOIR). The trials are before the bench (with no jury) and a Digital Audio Recording (DAR) is made of the proceedings. Lawyers conduct direct and cross examinations and sometimes — but not often enough — make objections. The F.R.E. can provide some guidance in immigration court practice, although immigration proceedings are not bound by the strict rules of evidence.6 6 Dallo v. INS, 765 F. 2d 581 (6th Cir. 1985); Longoria-Castaneda v. INS, 548 F. 2d 233 (8th Cir. 1977); Baliza v. INS, 709 F. 2d 1231 (9th Cir. 1983); Matter of Devera, 16 I. & N. Dec. 266 (BIA 1977). The relevant F.R.E. citation for each objection has been included. Objections to questions must first be made at the trial court level, because if the objection is not made there, an argument based on that objection cannot be asserted on appeal.7 7 See Matter of Edwards, 20 I. & N. Dec. 191, 196–197 n.4 (BIA 1990) (objections not lodged before the immigration judge are not appropriately raised first on appeal). In immigration court, as in other courts, evidentiary objections must be made in a timely fashion, and the grounds must, therefore, be identified with particularity.8 8 Thus, a party who fails to raise a timely and specific objection to the admission of evidence generally does not preserve such an objection as a ground for appeal. Matter of Lemhammad, 20 I. & N. Dec. 316, 325 (BIA 1991); see also Fed. Rule of Evidence 103(a)(1). See United States v. Adamson, 665 F. 2d 649, 660 (5th Cir. 1982); United States v. Arteaga-Limones, 529 F. 2d 1183, 1198 (5th Cir. 1976). See also 8 C.F.R. § 1240.10(a)(4) (the immigration judge shall “advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence against him or her.”).
The purpose of this article is to discuss verbal objections in immigration court removal/deportation proceedings. It is not an exhaustive and limiting list. It is merely a discussion of the main fourteen objections out of many potential objections that generally make the most sense in immigration court proceedings. This article does not include any objections based upon the potential mental capacity of a witness. The EOIR has extensive criteria for dealing with witnesses that exhibit such issues and that is well beyond the scope of this discussion.9 9 Matter of M-J-K, 26 I. & N. Dec. 773 (BIA 2016). Further, unlike many articles providing a “hip pocket” guide to objections at a trial court level, this article does not examine hearsay objections since hearsay is allowed in immigration court unless its use is fundamentally unfair.10 10 Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988). See also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823-24 (9th Cir. 2003); Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001). The general rule with respect to evidence in immigration proceedings is that admissibility is favored, as long as the evidence is shown to be probative of relevant matters and its use is fundamentally fair so as not to deprive the alien of due process of law.11 11 Baliza v. INS, 709 F. 2d 1231 (9th Cir. 1983); Matter of Toro, 17 I. & N. Dec. 340 (BIA 1980); Tashnizi v. INS, 585 F. 2d 781 (5th Cir. 1978); Trias-Hernandez v. INS, 528 F. 2d 366 (9th Cir. 1975); Marlowe v. INS, 457 F. 2d 1314 (9th Cir. 1972); Matter of Lam, 14 I. & N. Dec. 168 (BIA 1972).
Since I was inspired to write this guide by the line from Shakespeare’s Hamlet where Queen Gertrude comments that a character in a play protests too much, I discuss each of the fourteen objections as though they were part of Shakespeare’s next best known medium, the fourteen line sonnet.12 12 Linda Gregerson, The Sonnet: Poetic Form. A Shakespearean sonnet has three four-line quatrains and then a two line “volta,” or twist, at the end. I have divided up three general groups of objections and saved the best two for the end.

II. The First Quatrain — Questions that Elicit an Organic Response

Argumentative

DISCUSSION: This is not an objection to opposing counsel making a good point. It should be used when the questioning attorney is not asking a question and is instead making an argument of law or application of law that should be argued in summation. It is only valid when the witness is not being asked a question that he or she can properly answer.
F.R.E. Reference: Argumentative (611(a))
RESPONSE: “Your Honor, I am testing the testimony of this witness.”13 13 The concept of suggesting a lawyer’s response to a judge after the judge has ruled on the objection was suggested to this author by the work of Leonard Bucklin from his Building Trial Notebooks series (James Publishing). Mr. Bucklin is a Felllow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements. On the other side of the table, Mr. Bucklin has been placed in Best's Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His training materials have been used by the New Jersey Institute of Continuing Legal Education in basic skills classes.

Form

DISCUSSION: An objection that the “form” is improper is a generalization; it is a sort of “catch-all” when the sense is that there is something wrong with a question. The objection is generally dealt with by a direction to counsel to rephrase. The best objections to “form” should state the specific issue.
RESPONSE: “Your Honor, may counsel be requested to inform the court in what specific way is the form of my question insufficient, so that I can remedy any problem?” (Then, when informed, restate the question to eliminate the bad form.)

Compound Question/Double Question

DISCUSSION: The question is really two questions posed as one. This objection should only be used when the question is misleading and the answer could be misconstrued by the jury.
F.R.E. Reference: Compound (611(a))
RESPONSE: Separate the question into the two parts.

Confusing/Vague/Ambiguous

DISCUSSION: Confusing/vague/misleading/ambiguous are all words that convey the objection that the question is not posed in a clear and precise manner so that the witness knows with certainty what information is being sought.
RESPONSE: “Your Honor, I can restate that question.”

Counsel is Testifying/Misstates Evidence/Misquotes Witness/Improper Characterization of Evidence

DISCUSSION: Basically, in immigration court, this is when a lawyer is leading his or her own witness on direct or deliberately misstating facts on cross. The immigration judge has inherent power to administer the trial so that it is fair. The value of making this objection is to both wake up the witness to pay attention and not mindlessly answer the question, and also to call the attention of the immigration judge to the fact that the earlier testimony was different.
RESPONSE: “Your Honor, it is not a misstatement, and certainly the court and jury have heard the evidence.” If the issue is counsel testifying, then, depending on the type of question, the best response is to revert back to non-leading who, what, where, when, how and why questions.

Narrative

DISCUSSION: This type of objection in immigration court is really only useful with expert witnesses. The point being that the immigration judge wants to hear from the respondent in a general narrative form, since so much of the respondent’s case will depend upon whether the immigration judge finds him or her credible. However, objecting to a long narrative by an expert witness has the advantage of preventing an expert witness or other verbally gifted witness from captivating the attention of the immigration judge.
RESPONSE: “Your Honor, this simply asks for a short description of the expert’s methodology.”

III. The Second Quatrain — Questions Based on What Has Happened in Court

Assumes Facts Not in Evidence

DISCUSSION: Facts which are not in evidence cannot be used as the basis of a question, unless the immigration judge allows the question “subject to later connecting up.” Generally, in the interest of good administration and usage of time, the immigration judge may allow the missing facts to be brought in later.
RESPONSE: “Your Honor, we will have those facts later in the case, but this witness is here now and it is the best use of time to ask that question now.”

Beyond The Scope of Direct/Cross/Redirect Examination

DISCUSSION: The testimony sought was not covered by the opposing counsel while questioning the witness and is not relevant to any of the previous issues covered. In the testimony of an expert, the scope of what is within the direct examination is not limited to the exact items the expert talked about. Because the expert is an expert in an entire field and is there to explain items in the field of endeavor, the scope of direct is usually understood to be everything in the expert’s field of knowledge that bears on the case in issue.
F.R.E. Reference: Beyond Scope (of Direct, Cross) (1002).
RESPONSE: “Your Honor, this is within the scope of the direct examination (cross-examination) because [explain].”

Speculative

DISCUSSION: The witness does not have first-hand knowledge of the fact about which he or she is testifying. Greater freedom is allowed with expert witnesses, but still the expert is limited by Rule 702 strictures. Expert witnesses are allowed in immigration court proceedings.14 14 Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011). An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the immigration judge to understand the evidence or to determine a fact in issue. The “spirit of Daubert” is applicable in immigration court. See Pasha v. Gonzales, 433 F. 3d 530 (7th Cir. 2005) (discussing the rubric of expert testimony and referencing the seminal expert report case under the Federal Rules of Evidence, Daubert v. Merrill Pharmaceuticals, 509 U.S. 579 (1993)). The immigration judge has the discretion to exclude expert testimony. Matter of V-K-, 24 I. & N. Dec. 500, fn. 2 (BIA 2008); Akinfolarin v. Gonzales, 423 F. 3d 39, 43 (1st Cir. 2005).
F.R.E. Reference: Speculation (602; 701)
RESPONSE: “Your Honor, this is an expert giving an expert opinion within the scope of her expertise.”

Foundation/Lack of Personal Knowledge

DISCUSSION: The predicate evidence has not been entered that would make this evidence admissible. This is a good objection to make when the evidence about to come in is objectionable in some way. The objecting attorney must identify what is necessary to correct the lack of foundation for the deponent to answer.15 15 United States v. Michaels, 726 F. 2d 1307, 1314 (8th Cir. 1984). If the witness is a layperson, the usual foundation objection is a lack of showing that the witness has personal knowledge of the facts which the question seeks. If the witness is an expert, the usual foundation objection is a lack of showing that the expert is qualified to give the opinion sought. A (non-expert) witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but not must, consist of the testimony of the witness. With some qualifications, experts can testify to facts they used in their process of building an opinion, even if they do not have personal knowledge of the facts supporting the opinion.
F.R.E. Reference: Rule 602, 703; Lack of Foundation (602; 901(a))
RESPONSE: [Establish by preliminary questions that the person has actual personal knowledge.]

IV. The Third Quatrain — Imagery: Questions Based On Rules

Best Evidence Rule

“OBJECTION: Your Honor, this is not the best evidence. The original document is the best evidence.”
DISCUSSION: This objection can be used when the evidence being solicited is not the best source of the information.16 16 In the Matter of M-, 5 I. & N. Dec. 484 (BIA 1953) (failure to produce reports of Communist Party activity made by the Government witness to the police department is not a violation of the best evidence rule where the sole issue is whether the respondent was a Communist Party member. Such reports did not create Communist Party membership but reflected the witness’s report of such membership; they were not used by the witness or the Government in the hearing; and there was no showing that they were relevant for the purpose of impeachment). It usually occurs when a witness is being asked a question about a document that is available to be entered into evidence. The document should be entered as proof of its contents. There are three aspects to the “Best Evidence Rule.” The first aspect is the one most often invoked: ordinarily a non-expert witness is not allowed to describe what is in a document without the document itself being introduced into evidence. Put the document into evidence first, and then have the lay witness talk about what is in it. The second aspect is requiring the original document to be introduced into evidence instead of a copy — if the original is available. Requiring the original document (the best evidence) to be available for examination insures that nothing has been altered in any way. The original document is not always available, especially in cases where a respondent may be fleeing persecution/prosecution. The third aspect is a summary of voluminous documents. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
F.R.E. Reference: Rules 1002, 1003, 1006.
RESPONSE: Dependent on the aspect of the Best Evidence rule involved in the objection: [Offer the document into evidence] [“Your Honor, this is admissible as a copy under Evidence Rule 1003”] [“Your Honor, this is a summary admissible under Evidence Rule 1006”].

Opinion

DISCUSSION: An improper lay (non-expert) opinion is when a witness is giving testimony that does not require an expertise, but is still an opinion that does not assist the jury in its understanding of the case. In regard to an expert, this objection is made to the competence of the expert due to the inability of the expert to pass the voir dire requirements for experts. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized expert knowledge.
F.R.E. Reference: Rule 701, 702.
RESPONSE to Objection Regarding Expert: “Your Honor, the witness is an expert and entitled to draw a conclusion.”

Privileged Communication

DISCUSSION: A privilege is a right of an individual not to testify.
Some general privileges are:
  • Attorney-Client17 17 See generally Immigration Court Practice Manual, Chapter 2, Sec. 2.3(d); Matter of Velazquez, 19 I. & N. Dec. 384 (BIA 1986); Matter of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971) (finding that attorney-client privilege was lost when the representative was in pursuit of a fraudulent claim); see also Ann Naffier, Attorney-Client Privilege for Non-Lawyers? A Study of Board of Immigration Appeals-Accredited Representatives, Prilege, and Confidentially, 59 Drake L. Rev. 584 (2011).
  • Attorney Work Product
  • Husband-Wife18 18 Matter of Gonzalez, 16 I. & N. Dec. 44 (BIA 1976); Matter of B-, 5 I. & N. Dec. 738 (BIA 1954).
  • Mental Health Records19 19 Matter of B-, 5 I. & N. Dec. 738 (BIA 1954). (The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist).
  • Physician-Patient
  • Psychotherapist-Patient
RESPONSE: “Your Honor, the matter is not privileged because….”

Public Policy

DISCUSSION: The objection regarding public policy does not consist of an optional right of an individual not to testify. The objection based on public policy refers to a non-optional class of evidence that cannot be introduced, no matter that the person who holds the evidence wants to testify. Subjects forbidden by state and federal law are wide:
  • Medical Expense Payments. Evidence of the payment of medical expenses to show liability for negligence leading to the medical expenses is inadmissible.
  • Medical Review Records. Most states forbid discoverability or admissibility of the records of a medical review committee of a hospital. It is a legislative policy decision to promote the ability of a hospital to discover medical malpractice above that of the injured person to discover the malpractice.
  • Parole Evidence Rule. The “parole evidence rule” has long been a rule of law in the English speaking world. In the absence of fraud or mutual mistake, oral statements are not admissible to modify, vary, or contradict the plain terms of a valid written contract between two parties.
  • Witness is Attorney. Ethical rules prohibit a lawyer from serving simultaneously as a witness and an advocate. Generally, a party’s lawyer who attempts to testify is subject to having to choose between being a witness or continuing as a lawyer in a case.
F.R.E. Reference: 409
RESPONSE: [Depends on the statute or rule involved.]

V. The Couplet — The Volta: The Takeaway, Most Important Objections

Leading on Direct Examination

DISCUSSION: The question on direct suggests an answer. This is (1) not an objection on cross, and (2) actually allowed in some circumstances. The important factor is not whether the question is leading, irrelevant, or without foundation, but rather whether the answer would assist the immigration judge in formulating his or her opinion. The special inquiry officer should weigh this objective along with his obligation to keep the record within bounds when ruling upon objections made by either counsel for the alien or the trial attorney.20 20 Matter of Joseph, 13 I. & N. Dec. 70 (BIA 1968). The problem with a leading question is that the question itself suggests the answer that the examiner wants to have. A leading question often, but not always, can be answered with a “yes.” To encourage witnesses telling facts in their own way, leading questions are not allowed on direct examination when an attorney is examining his/her own friendly or neutral witness. When an attorney has called a hostile witness (which may be someone other than the adverse party), leading questions are allowed in direct examination. Leading questions are always proper in cross-examinations.
F.R.E. Reference: Leading (611(c))
RESPONSE: “Your Honor, this question is only preliminary to move us quickly to the matters in issue.” OR “Your Honor, the witness is a hostile witness.” Depending on the type of question, the best response is often to revert back to non-leading who, what, where, when, how and why questions.21 21 Dorothy Harbeck, The Commonsense of Direct and Cross Examinations in Immigration Court, 304 New Jersey Law. Mag. (2017) (NAIJ capacity); Dorothy Harbeck, Terms so Plain and Firm as to Command Assent: Preparing and Conducting Optimal Direct Examination of the Respondent, Fed. Law. 13 (Jan./Feb. 2017) (primary author, NAIJ capacity).

Rule 403 (Undue Waste of Time or Undue Prejudice/Immaterial/Irrelevant/Repetitive/Asked and Answered/Cumulative/Surprise)

DISCUSSION: The argument is that the evidence being introduced is highly prejudicial to your client and this prejudice far outweighs the probative value. An objectionable piece of evidence is one that not only hurts your case but is also not sufficiently relevant to the merits of your opponent’s case to be let in.
In immigration court, all relevant evidence should be admitted.22 22 Matter of Edwards, 20 I. & N. Dec. 191 (1990). Determining “probative value” or “weight” is at the discretion of the immigration judge.23 23 Admissibility is favored and the most pertinent question is what weight an immigration judge should accord a particular piece of evidence. Matter of H-L-H & Z-Y-Z, 25 I. & N. Dec. 209 (BIA 2010), 8 C.F.R. sect. 1003.41, 8 C.F.R. sect 1287.6(b). The amount of “unfair prejudicial effect” also is determined by the judge. The word “unfair” is the key. In determining whether to exclude evidence, immigration judges should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.
F.R.E. Reference: More Prejudicial Than Probative (401–403); Non-responsive (611a).
RESPONSE: “Your Honor, the exclusion of relevant evidence for unfairness is an extraordinary remedy. There is nothing unfair about this evidence.”
Do not be afraid to object in immigration court. The Federal Rules of Evidence are not strictly followed; however, evidence must be relevant and fundamentally fair. If the evidence is not, no protest is too much.

Footnotes

1William Shakespeare, Gertrude to Hamlet, “The lady doth protest too much, methinks.”
2Dorothy A. Harbeck is the Eastern Regional Vice President of the National Association of Immigration Judges (NAIJ). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice. Judge Harbeck is also an adjunct Professor of Law at Seton Hall University School of Law in trial skills.
4Matter of Interiano-Rosa, 25 I. & N. Dec. 264 (BIA 2010); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980). See also Simon Azar-Farr, A Synopsis of the Rules of Evidence in Immigration Removal Proceedings, 19 Bender's Immigr. Bull. 3 (Jan. 2014).
6Dallo v. INS, 765 F. 2d 581 (6th Cir. 1985); Longoria-Castaneda v. INS, 548 F. 2d 233 (8th Cir. 1977); Baliza v. INS, 709 F. 2d 1231 (9th Cir. 1983); Matter of Devera, 16 I. & N. Dec. 266 (BIA 1977).
7See Matter of Edwards, 20 I. & N. Dec. 191, 196–197 n.4 (BIA 1990) (objections not lodged before the immigration judge are not appropriately raised first on appeal).
8Thus, a party who fails to raise a timely and specific objection to the admission of evidence generally does not preserve such an objection as a ground for appeal. Matter of Lemhammad, 20 I. & N. Dec. 316, 325 (BIA 1991); see also Fed. Rule of Evidence 103(a)(1). See United States v. Adamson, 665 F. 2d 649, 660 (5th Cir. 1982); United States v. Arteaga-Limones, 529 F. 2d 1183, 1198 (5th Cir. 1976). See also 8 C.F.R. § 1240.10(a)(4) (the immigration judge shall “advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence against him or her.”).
9Matter of M-J-K, 26 I. & N. Dec. 773 (BIA 2016).
10Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988). See also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823-24 (9th Cir. 2003); Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001).
11Baliza v. INS, 709 F. 2d 1231 (9th Cir. 1983); Matter of Toro, 17 I. & N. Dec. 340 (BIA 1980); Tashnizi v. INS, 585 F. 2d 781 (5th Cir. 1978); Trias-Hernandez v. INS, 528 F. 2d 366 (9th Cir. 1975); Marlowe v. INS, 457 F. 2d 1314 (9th Cir. 1972); Matter of Lam, 14 I. & N. Dec. 168 (BIA 1972).
12Linda Gregerson, The Sonnet: Poetic Form.
13The concept of suggesting a lawyer’s response to a judge after the judge has ruled on the objection was suggested to this author by the work of Leonard Bucklin from his Building Trial Notebooks series (James Publishing). Mr. Bucklin is a Felllow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements. On the other side of the table, Mr. Bucklin has been placed in Best's Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His training materials have been used by the New Jersey Institute of Continuing Legal Education in basic skills classes.
14Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011). An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the immigration judge to understand the evidence or to determine a fact in issue. The “spirit of Daubert” is applicable in immigration court. See Pasha v. Gonzales, 433 F. 3d 530 (7th Cir. 2005) (discussing the rubric of expert testimony and referencing the seminal expert report case under the Federal Rules of Evidence, Daubert v. Merrill Pharmaceuticals, 509 U.S. 579 (1993)). The immigration judge has the discretion to exclude expert testimony. Matter of V-K-, 24 I. & N. Dec. 500, fn. 2 (BIA 2008); Akinfolarin v. Gonzales, 423 F. 3d 39, 43 (1st Cir. 2005).
15United States v. Michaels, 726 F. 2d 1307, 1314 (8th Cir. 1984).
16In the Matter of M-, 5 I. & N. Dec. 484 (BIA 1953) (failure to produce reports of Communist Party activity made by the Government witness to the police department is not a violation of the best evidence rule where the sole issue is whether the respondent was a Communist Party member. Such reports did not create Communist Party membership but reflected the witness’s report of such membership; they were not used by the witness or the Government in the hearing; and there was no showing that they were relevant for the purpose of impeachment).
17See generally Immigration Court Practice Manual, Chapter 2, Sec. 2.3(d); Matter of Velazquez, 19 I. & N. Dec. 384 (BIA 1986); Matter of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971) (finding that attorney-client privilege was lost when the representative was in pursuit of a fraudulent claim); see also Ann Naffier, Attorney-Client Privilege for Non-Lawyers? A Study of Board of Immigration Appeals-Accredited Representatives, Prilege, and Confidentially, 59 Drake L. Rev. 584 (2011).
18Matter of Gonzalez, 16 I. & N. Dec. 44 (BIA 1976); Matter of B-, 5 I. & N. Dec. 738 (BIA 1954).
19Matter of B-, 5 I. & N. Dec. 738 (BIA 1954). (The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist).
20Matter of Joseph, 13 I. & N. Dec. 70 (BIA 1968).
21Dorothy Harbeck, The Commonsense of Direct and Cross Examinations in Immigration Court, 304 New Jersey Law. Mag. (2017) (NAIJ capacity); Dorothy Harbeck, Terms so Plain and Firm as to Command Assent: Preparing and Conducting Optimal Direct Examination of the Respondent, Fed. Law. 13 (Jan./Feb. 2017) (primary author, NAIJ capacity).
22Matter of Edwards, 20 I. & N. Dec. 191 (1990).
23Admissibility is favored and the most pertinent question is what weight an immigration judge should accord a particular piece of evidence. Matter of H-L-H & Z-Y-Z, 25 I. & N. Dec. 209 (BIA 2010), 8 C.F.R. sect. 1003.41, 8 C.F.R. sect 1287.6(b).

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Kasey A. Feltner1 1 B.S., University of West Florida; M.S., National Graduate School; J.D., Stetson University College of Law, 2017. While at Stetson, Mr. Feltner served as a Stetson Law Review Associate, Moot Court Board Chief Justice, and Editor in Chief for the Stetson Journal of Advocacy and the Law. Mr. Feltner is also currently a Lieutenant in the United States Coast Guard Reserve. Mr. Feltner dedicates this Article to his wife, Adrienne, who has been a constant source of knowledge and support, his work colleagues, who have inspired him and pushed him, and to his loving family and friends.

5 Stetson J. Advoc. & L. 50 (2018)
As the woman approached the podium, it was obvious to everyone in the room she was upset and eager to voice her opinion. She laid her notes on the slanted surface of the lectern and organized them before speaking. When she finally looked up from the notes, her eyes met the five city officials who sat in front of her. Each official was seated in a high-backed leather chair, behind a long wooden desk that formed a somewhat semi-circle surrounding the lectern where the woman stood. After a few tense moments, the woman began speaking:

City councilmen, you simply can’t approve this project. Think of what it will do to our neighborhood. If you allow this developer to build this monstrosity of a building in our neighborhood, it is going to ruin everything we have worked so hard for.

At this statement, one city official leaned forward, removing his glasses and looking intently at the woman as she continued.

City councilmen, think of what is going to happen if you approve this project, if you allow this nursing home to be built in our backyards. We are going to have the stigma of being a retirement community, rather than the up-and-coming neighborhood. Our children won’t be able to play in the streets because they will have to fear that an old person driving a car to the nursing home will not see them and hit them. We will have old people in bathrobes walking on our sidewalks in the middle of the day; imagine what that is going to do to our home value.

At this the city official who previously leaned forward asked the woman: “so what would you have us do instead?” To which the woman replied: “Allow the nursing home to be built, just not in our neighborhood, not in one of the most expensive residential neighborhoods in town.”
An hour later, after the city hall hearing room emptied and the free coffee, orange juice, and cookies were consumed or discarded, the city official who had listened intently to the woman, questioning her as she spoke at the lectern, packed his things and headed for his car. On the way, he pulled his phone out of his pocket and tapped with his finger a small app icon with a blue background and a white “F.” Before reaching his car, the official typed in the name of one his fellow city councilmen — his friend on Facebook — tapped the “Message” button, and began to type in the small white space of his Facebook account: “They were right!!! Nursing homes don’t belong in one of our up-and-coming neighborhoods.” The official scanned what he typed, and before pulling the driver-side handle on his car, hit the small blue button that read “Send.”

I. Introduction

All fifty states have enacted legislation requiring public access to documents and conversations that result in government actions. Indeed,

Effective self-governance requires that the citizenry be well informed. In addition to self-governance, open government laws contribute to a less corrupt, more efficient government.2 2 Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011).

Both federal and state statutes govern public access to records. On the federal side, the Freedom of Information Act (“FOIA”) was enacted in 1966 and allows the public to access certain non-confidential federal records.3 3 The Freedom of Information Act, 5 U.S.C. § 552 (2012). Each of the states on the other hand have adopted their own distinct “sunshine law” (or open access law) governing the public’s right to access governmental records.4 4 State Sunshine Laws.
In the more than half a decade since the passage of FOIA and the bevy of similar state laws that followed, numerous amendments have been made at the federal and state level to adapt to shifts in technology and different means of communication.5 5 See generally Matthew D. Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, 20 Fla. St. U. L. Rev. 543 (1993). Despite these adaptations:

Technologies such as the internet, cellphones and laptop computers were not contemplated when many government entities formulated their laws governing access to records and meetings.6 6 Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011).

As these technologies advance, they pervade the everyday lives of not only common citizens, but also elected officials both in their personal and official capacities. This raises the question of whether use of technology on private devices by public officials while in their official capacity should be considered “public records,” thereby making those private electronic messages accessible by the public under sunshine laws.7 7 See generally Haleigh Jones, Public Officials’ Facebook “Likes”: The Case for Leaving Regulation of Official “Likes” to the Torches and Pitchforks of Constituents, 18 SMU Sci. & Tech. L. Rev. 263 (2015); see also Matthew D. Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, 20 Fla. St. U. L. Rev. 543 (1993).
Some local governments and states have implemented laws and policies as to the discoverability of a public official’s private email used for “official business.”8 8 See Fla. Att’y Gen. Op. AGO 2009–19 (Apr. 23, 2009). What courts must currently decide is whether a public official’s electronic messages on a private device — whether text messages, emails, social media posts, and social media messages, and whether in typeface, picture, or audio format — are discoverable in a civil action. This is a difficult task because, while “[e]verything a government employee says that relates to official business is treated as part of the public record,” how are courts supposed to decide which private messages are related to “official business” and which are personal in nature — and does it matter?9 9 Haleigh Jones, Public Officials’ Facebook “Likes”: The Case for Leaving Regulation of Official “Likes” to the Torches and Pitchforks of Constituents, 18 SMU Sci. & Tech. L. Rev. 263, 272–74 (2015).
Moreover, state laws granting access to public records may conflict with the Constitution and privacy protections under federal statutory law.10 10 U.S. Const. amends. I, IV; 18 U.S.C. § 2707 (2002). Thus courts must consider not only the ramifications with regard to a state’s sunshine law when analyzing the discoverability of a public official’s private electronic messaging activity, but also the federal ramifications of such decisions.11 11 See generally Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137 (2002).
Despite the private obstacles courts must face when deciding whether or not to allow discovery of this type of messaging activity, it is also important to ask whether the discoverability of this material is a good thing in the first place. Do we want public officials using private text messages and social media for official business? Some have argued social media and private electronic messaging platforms can become a persuasive tool in the decision-making process of local governments (e.g. in land use regulation).12 12 See generally Julie A. Tappendorf, To Tweet or Not to Tweet: Use of Social Networking in Land Use Planning and Regulation, 34(5) Zoning & Planning L. Rep. 1 (2011). This is important because, while a public official’s use of social media can be a positive tool with regard to shaping a municipalities’ land use decisions, these private electronic messaging platforms can also serve as a vehicle to promote the implementation of discriminatory land use regulation decisions.
At their core, social media and private electronic communication messages by and between public officials are ex parte communications.13 13 See generally Julie A. Tappendorf, To Tweet or Not to Tweet: Use of Social Networking in Land Use Planning and Regulation, 34(5) Zoning & Planning L. Rep. 1 (2011). Thus, those communications may be admissible and serve as evidence of discrimination in civil actions where a party claims it was denied a requested use of its property based on discriminatory animus by the city officials deciding the issue.14 14 Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 200–203 (2002). In this context, it would appear that, if private electronic messaging activities by public officials are discriminatory in nature as to the approval of certain land uses, then those activities would need to be discoverable in civil actions.
To address this debate, this Article will attempt to propose solutions to the following three discussion topics:
  1. Are private electronic messages of a public official a “public record” if used for “official business”?
  2. Does allowing a party to discover those communications violate a public official’s constitutional rights or rights to privacy under federal law?
  3. Should we allow parties to discover an official’s private electronic messages in certain land use actions at the risk of deterring and negating the benefits that private electronic messaging platforms — i.e. social media — can offer?
To answer these discussion topics, Part II of this article outlines which electronic communications of public officials are in fact “public records,” thereby causing them to be governed by a state’s open access law.15 15 Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011). Part III discusses how and why courts should allow private citizens to discover pertinent private electronic communications by public officials concerning land use decisions of local governments.16 16 See generally Nissen v. Pierce Cty., 183 Wash. 2d 863 (Wash. 2015). Part IV analyzes the justifications for allowing private citizens to discover private electronic messages in certain actions, despite the protections of the Constitution and federal statutory law.17 17 See generally Carolyn Elefant, The “Power” of Social Media: Legal Issues & Best Practices for Utilities Engaging Social Media, 32 Energy L.J. 1 (2011). Part V briefly provides the steps governments should take to ensure discovery of private electronic communications is allowed, yet not abused. And Part VI concludes that, because private electronic messaging has become such an integral part of our society, public officials must be mindful of what they communicate as “official business.”

II. Are Private Electronic Messages “Public Records”?

In the United States, there is no universal open records statute. Rather, states regulate the accessibility of public records through their own open records statutes — through legislation, interpretations of legislation by courts, and of the opinions of attorneys general. States differ when deciding what is considered a public record and how these records are accessed. Inevitably, a debate has arisen as to whether or not information stored in government officials’ and employees’ privately owned “computers, laptops, cell phones, PDAs, smart phones, and other personal electronic communication devices in conjunction with their work” should be subject to open access laws.18 18 Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 296 (2014) (citing Okl. Att’y Gen. Op. 09–12 (2009).
Particularly contentious is the question of whether information stored on a server used for a government officials’ or employees’ private email or social media account should be subject to open access laws.19 19 Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293–97 (2014). See also Nicole Rodriguez, Investigation: Are Officials Inadvertently Breaking Records Law Online? TCPalm (Dec. 16, 2016). Critics of government officials who oppose classifying and disclosing personal emails used in the course of their duties as public records have pointedly asked:

If you’re not attempting to hide your communications from the public, then why use private e-mail accounts to conduct public business? If I were going to set up a system to try to circumvent the public records law, this is how I would do it.20 20 Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293–97 (2014), citing Benjamin Niolet & Michael Bieseker, Aide: Easley Wanted E-mail Messages Deleted, McClatchy D.C. Bureau (Feb. 4, 2010). See also Nicole Rodriguez, Investigation: Are Officials Inadvertently Breaking Records Law Online? TCPalm (Dec. 16, 2016).

In tackling this debate, a good place to start is how states define what a “public record” is. For instance, in Florida, “public records” are defined as:

all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.21 21 Fla. Stat. § 119.011(12) (2016). See also N.C. Stat. § 132–1 (2016), Neb. Stat. § 84–712.01 (2016).

In Delaware, a “public record” is defined as information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.22 22 Del. Stat. §10002(l) (2016).
The two definitions are similar on their face; however, unlike Florida, which only sets forth a broad and general codified definition of what a public record is, Delaware goes a step further by stating what is not considered a public record.23 23 Del. Stat. §10002(l) (2016). Indeed, Delaware has made it clear that “[e]mails received or sent by members of the Delaware General Assembly or their staff” are not public records.24 24 Del. Stat. §10002(l)(16) (2016). Even more telling of Delaware’s legislative intent is the following exception from public records:

Any communications between a member of the General Assembly and that General Assembly member’s constituent, or communications by a member of the General Assembly on behalf of that General Assembly member’s constituent, or communications between members of the General Assembly.25 25 Del. Stat. §10002(l)(19) (2016).

Reading Delaware’s statute in whole, it would seem to any disinterested observer that a government officials’ private email — and, for that matter, any email sent or received by a government official — is not subject to a public records request. Delaware is, however, somewhat of an anomaly in the realm of open access laws, because it:

consistently ranks among the bottom nationwide when it comes to government transparency and accountability. ... [T]he Center for Public Integrity slapped an F rating on Delaware in a state-by-state analysis based on public access to information, legislative accountability, ethics enforcement and other facets.26 26 Margie Fishman and James Fisher, Why Delaware Government Documents Stay Hidden, Delaware Online (Mar. 19, 2016).

Many states are beginning to deem government officials’ private communications as public records when those communications are used for “official business.”27 27 Fla. Att’y Gen. Op. AGO 2009–19 (Apr. 23, 2009); Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws?, 19 Comm. L. & Pol'y 293, 303–304 (2014). Illinois, for example, asks “whether that record was prepared by or used by one or more members of a public body in conducting the affairs of government.”28 28 Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 303--304 (2014). In Virginia, the state has observed that official business encompasses “those matters over which the public governmental body has supervision, control, jurisdiction, or advisory power.” 29 29 Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 304 (2014).
Most recently, the California Supreme Court unanimously ruled in City of San Jose v. Superior Court that government employees could not shield from the public work-related emails that were either sent from, or maintained on, private devices and through private accounts.30 30 Sudhin Thanawala, Court: Officials’ Emails on Private Accounts Are Public, AP (March 3, 2017); City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017). The court analyzed the statutory definition of a public record under the California Public Records Act (“CPRA”), which is:

any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

The court broke the statute down into four aspects, so that a public record is:

(1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.31 31 City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017), citing Cal. Stat. § 6252(e) (2016).

Interestingly, at least one state supreme court has ruled that private emails are not public records just because they are stored on government owned computers. In State v. City of Clearwater, the court held:

Personal e-mails are not “made or received pursuant to law or ordinance or in connection with the transaction of official business” and, therefore, do not fall within the definition of “public records” that are subject to disclosure by virtue of their placement on a government-owned computer system.32 32 State v. City of Clearwater, 863 So. 2d 149, 155 (Fla. 2003).

Addressing the first aspect, the court in San Jose easily established that emails were writings through the statutory definition of a “writing” under the CPRA, which encompasses “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile.”33 33 City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017). Under the second aspect, the court stated that, “to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.”34 34 City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017). Turning to the third aspect, the court found:

[T]he term “local agency” logically includes not just the discrete governmental entities listed [under the CPRA], but also the individual officials and staff members who conduct the agencies’ affairs.35 35 City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).

Lastly, and perhaps most importantly, it found the fourth aspect satisfied because:

A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of [the CPRA], even if the writing is retained in the employee’s personal account.36 36 City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).

Concluding that electronic communications contained on a government official’s private account are subject to public records requests, California came into alignment with other states, such as Florida.37 37 City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017); see also Fla. Att’y Gen. Op. AGO 2008–07 (Feb. 26, 2008). However, the majority of courts have not addressed whether text messages and social media activity fall under the umbrella of electronic communications in an official’s private account.38 38 See Ross Rinhart, “Friending” and “Following” the Government: How the Public Forum and Government Speech Doctrines Discourage the Government’s Social Media Presence, 22 S. Cal. Interdisc. L.J. 781, 781–82 (2013).
Legislatures have begun to fill this void by amending current public records laws and regulations.39 39 Tex. Reg. Text, 13 TAC 7.125 (proposed Aug. 26, 2016). Late in 2016, for example, the Texas legislature decided that the use of social media applications may create public records, and should be managed appropriately. Local governments will need to consult the relevant records retention schedule for the minimum retention periods. Similarly, the New Mexico legislature has adopted regulations bringing social media postings and private electronic messages by government officials under the purview of open access laws, so that “any attachments which may be transmitted with the electronic message, including text messages, social media and e-mail ... are identified as public records.”40 40 N.M. Reg. Text, 1.13.4 (effective Nov. 30, 2015).
Thus, lawmakers are beginning to consider what constitutes a public record regarding electronic communications held on either personal devices or online private accounts.41 41 City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017); Tex. Reg. Text, 13 TAC 7.125 (proposed Aug. 26, 2016). But a tough question remains as to whether these communications would be relevant, and therefore admissible, during land use litigation. It is the position of this article that these communications are vital to the parties during land use litigation.

III. The Use and Effectiveness of Public Records in Land Use Actions

At its core, the zoning of land involves the division of land by local governments and municipalities so as to define the physical dimensions of the land along with the permissible use of that land by its owners.42 42 Kristine Nelson Fuge, Exclusionary Zoning: Keeping People in Their Wrongful Places Or a Valid Exercise of Local Control? 18 Hamline J. Pub. L. & Pol'y 148, 150 (1996). It has long been the law of the United States that local governments are provided broad discretion when determining what use of the land is appropriate and how it should be zoned, provided that discriminatory practices are not employed against protected classes of citizens.43 43 Wentworth v. Hedson, 493 F. Supp. 2d 559, 565 (E.D.N.Y. 2007). See generally Fair Housing Act of 1968, 42 U.S.C. §§ 3601–3619 (2012); Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).
Sometimes, community residents try to prevent a particular land use near their homes. Put more simply, neighbors of a community might not want a business or organization moving into their community based purely on the aspects of that business or organization. The term coined by the courts for this exclusionary tactic by a community is “NIMBY” — an acronym for “Not in My Backyard.”44 44 Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 196 (2002).
NIMBY reactions have been used against the elderly to attempt to block construction of nursing homes and assisted living facilities.45 45 Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 200–203 (2002). Recognizing that some communities engage in these discriminatory practices, courts have become wary of local governments who deny nursing homes’ and assisted living facilities’ applications for building permits.46 46 Urban Farms, Inc. v. Borough of Franklin Lakes, 431 A.2d 163, 166–68 (N.J. Super. App. Div. 1981). Yet exclusionary zoning via discriminatory practices persist as local townships and municipalities continue to exclude elderly care facilities through impermissible use of zoning laws.47 47 See Todd C. Frankel, Disputes Over Senior Housing Reflect “Not in My Backyard” Worries, St. Louis Post-Dispatch (Aug. 3, 2013); see also James M. Berklan, Scorned Nuns Brew Up a NIMBY Lawsuit, McKnight's (Feb. 4, 2016).
To succeed in a discriminatory housing action against a local city or municipality, a party must show that the city’s reason for preventing the development of protected-class housing was a pretext for discriminatory decisionmaking.48 48 Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011). Courts can make this determination by comparing a city’s decision to the evidence in the record and the zoning ordinance governing the city’s decision,49 49 See generally Urban Farms, Inc. v. Borough of Franklin Lakes, 431 A.2d 163 (N.J. Super. App. Div. 1981). or by examining the individual actions of commissioners in charge of granting building permits.50 50 See Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011). Courts have held public records are useful and vital tools to determine the motivation of zoning commissions.51 51 See Blagden Alley Association v. D.C. Zoning Commission, 590 A.2d 139 (D.C. 1991); Shepherdstown Observer, Inc. v. Maghan 700 S.E.2d 805 (W. Va. 2010).
For example, during land use litigation in Florida in 2015, city officials were found to have withheld personal and private electronic messages that would constitute public records. In the middle of this litigation, a Florida state judge denied that the municipality had committed any public records violations by ruling that none of the commissioner’s personal emails were either public records or available.
However, upon a subsequent, and accidental, production of previously unproduced personal emails, the judge ordered a new trial because, had those emails been produced in the first place, “[t]he emails would have met the parameters of [the plaintiff]’s original public-records request.”52 52 Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016). The city’s refusal to produce emails, and its denial of their status as public records, has cost the local municipality and its tax payers hundreds of thousands of dollars in litigation costs, regardless of whether it is ultimately successful.53 53 Barbara Clowdus, Commissioner’s Emails Uncovered in Lake Point Case, Martin County Currents (Mar. 21, 2016). Nearly a year after a new trial was granted, an arbitrator found that the commissioners did hide their private emails concerning official business of the county, held that a public records claim was ripe, and ordered that attorney’s fees pursuant to Florida Sunshine laws were appropriate along with injunctive relief.54 54 Barbara Clowdus, Lake Point’s Court Fight Over Public Records Ends ... Almost, Martin County Currents (Feb. 24, 2017).
This pending litigation against a Florida municipality shows that commissioners’ activity on private devices and private accounts can implicate open access laws, thereby creating a large amount of liability for a city if it does not comply with public records requests.55 55 Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016). And, as noted above, courts have forgone for decades the broad discretion normally afforded to municipalities regarding land use decisions when there is evidence that those decisions are based on discriminatory animus.56 56 Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011).
Thus, a government official’s private communications — whether through email, text, or social media — may prove to be at the forefront of evidence linking zoning decisions by local governments with discriminatory NIMBY actions.57 57 Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016). Yet constitutional and privacy concerns remain, and might suggest that elected government officials and government employees should be shielded from disclosing private communications. However, the following Part of this article will discuss why constitutional and privacy concerns do not — and should not — shield all private electronic communications by government officials.

IV. The Right to Privacy

Actions to force disclosure of public records have been highly scrutinized as a result of the protections contained within the First Amendment of the United States Constitution and the federal Privacy Act.58 58 Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution 86 Minn. L. Rev. 1137, 1201–03 (2002). (“In a series of cases, the Supreme Court has held that the First Amendment mandates that certain government proceedings be open to the public.”), citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984) (Press-Enterprise I); Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) (Press-Enterprise II). Additionally, the court in Nissen found that the Fourth Amendment to the United States’ Constitution did not shield discovery of public records. Nissen v. Pierce Cty., 183 Wash. 2d 863, 883 (Wash. 2015). Normally, speech made in a public forum (especially political speech) is afforded the greatest amount of protection under the First Amendment.59 59 See generally City of Ladue v. Gilleo, 512 U.S. 43 (1994).
However, as an employee of the government, a public official is not afforded First Amendment protection for private communications in the furtherance of official business concerning the government in which they serve.60 60 Morgan Watkins, Text Messages As Public Records: A New Set of Issues, The Gainesville Sun (Mar. 10, 2013). Further, courts are beginning to find that clarity and transparency of local government is paramount, and local officials are no longer allowed to claim that private messages should be afforded protection under the First Amendment.61 61 Christopher Cadelago & Ryan Lillis, Government Officials Can’t Use Private Devices to Hide Texts and Emails, Court Rules, The Sacremento Bee (Mar. 2, 2017).
As noted above, the California Supreme Court ruled in San Jose v. Superior Court that government employees could not refuse to turn over private text messages, contained on private cell phones, when those text messages related to official government business.62 62 City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017). Indeed, this seems to highlight the trend among states and their highest courts.63 63 Andrew Greene, Valerie Hughes & Tobias Piering, Work-Related Text Messages on Personal Cell Phones Are Public Records Says WA Supreme Court, JD Supra (Sept. 2, 2015). For example, in 2015, in Nissen v. Pierce County, the Washington Supreme Court found private text messages of government employees were subject to Washington’s open access law for public records, and that public officials do not enjoy a constitutional right of privacy in such records.64 64 Nissen v. Pierce Cty., 183 Wash. 2d 863, 880–81, 882 (Wash. 2015). The court derived this rule from the Supreme Court of the United States’ 1977 decision in Nixon v. Administrator of General Services in which the Court held that:

public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.65 65 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

Subsequently, in San Jose, the California Supreme Court held that:

We agree with Washington’s high court that this procedure, when followed in good faith, strikes an appropriate balance, allowing a public agency “to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”66 66 City of San Jose v. Superior Court, 389 P.3d 848, 860 (Cal. 2017).

Washington is not alone in applying the Supreme Court’s precedent from Nixon to electronic communications of government employees. In 2007, the Supreme Court of Idaho found in Cowles Publishing Company v. Kootenai County Board of County Commissioners that seemingly private electronic communications between a government employee and her supervisor were public records, and as such, the government employees “had no reasonable expectation of privacy in them.” The court in Cowles noted the federal Constitution protects an individual’s zone of privacy, “include[ing] an individual’s interest in having certain personal matters remain private.” However, private messages deemed public records are not personal matters, and, thus, are not afforded such protections under the First Amendment.67 67 Cowles Publishing Company v. Kootenai County Board of County Commissioners, 159 P.3d 896, 902 (Idaho 2007); compare State v. City of Clearwater, 863 So. 2d 149, 155 (Fla. 2003).
Therefore, as noted above in the previous Parts of this Article, both courts and legislatures are slowly beginning to view private electronic messages of government officials as public records, thereby subjecting those private messages to open access laws. Nowhere is this trend of open access to private electronic communications more applicable than to the private electronic communications of public officials concerning land use regulation. Accordingly, legislatures from each state should begin implementing various laws, regulations, and policies allowing the public to access these private communications without abuse of such access.

V. Moving Forward

Providing the public access to private electronic messages created by public officials is imperative because, as the court in Nissen stated, electronic messages through private devices:

are fast becoming an indispensable fixture in people’s private and professional lives. ... Yet the ability of public employees to use cell phones to conduct public business by creating and exchanging public records — text messages, e-mails, or anything else — is why [a state’s open access law] must offer the public a way to obtain those records.68 68 Nissen v. Pierce Cty., 183 Wash. 2d 863 ¶¶ 35, 36 (Wash. 2015).

Seemingly, without clear legislation and guidance from courts, we are hindering the people’s mandate to have “full access to information concerning the conduct of government on every level.”69 69 Nissen v. Pierce Cty., 183 Wash. 2d 863 ¶ 36 (Wash. 2015).
Accordingly, in response to the Nissen court’s call to action, there are various methods by which legislatures could require public officials to provide greater access to private electronic communications. One method is for states to adopt a public access law into their constitutions, and expressly provide that the right to privacy is waived for those records.70 70 Fla. Const. art. 1, § 23. Another is for legislatures to codify private electronic communications — text messages, emails, private social media postings/messages — as public records when used for official business by a government employee.71 71 See also H.R. 2455, 79th Leg. (Or. 2017). But perhaps the most expeditious and unencumbering method to amend open access laws is to adopt local government policies that address and govern the use of private electronic messages by public officials.

As these new technologies pervade the everyday activities of government officials and citizens alike, new policies (and sometimes laws) must be developed to ensure transparency. The closed doors that might have aided public officials in holding secret meetings in the past have now been replaced by electronic communications.72 72 Nissen v. Pierce Cty., 183 Wash. 2d 863, 879 (Wash. 2015); see also Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011). Despite this shift to adopt procedures, and relative ease in doing so, agencies are reluctant, even those that “[i]n a department all about following rules and procedures.” Mark Binker & Kelly Hinchcliffe, Texts Are Public Records but Access to Them Remains Tricky, AP (Mar. 13, 2017).

By taking these steps, states can retain their commitment to open access and transparent government, all the while ensuring technology advances do not shield public officials from disclosing public records in the form of private electronic communications.

VI. Conclusion

As private electronic messages become more ingrained in our everyday lives, states and the federal government must work diligently to provide open access to documents that could be considered public records. Otherwise, they are likely not only to run afoul of the public’s right to those documents, but also to allow public officials to shield what would otherwise be a public record under the guise of private communications.73 73 Mark Binker & Kelly Hinchcliffe, Texts Are Public Records but Access to Them Remains Tricky, AP (Mar. 13, 2017); see Fla. Const. art. 1, § 24(a); see also Cal. Const. art. 1, § 3(b)(1).
Such records can be pivotal factors in determining the outcome of land use litigation where unlawful discrimination is alleged. As technology advances, debates will continue over what constitutes a public record. One thing that will (hopefully) not change is the public’s right to access public records documenting how government decisions are made, thereby ensuring “granny” will always have a place to stay in our communities.

Footnotes

1B.S., University of West Florida; M.S., National Graduate School; J.D., Stetson University College of Law, 2017. While at Stetson, Mr. Feltner served as a Stetson Law Review Associate, Moot Court Board Chief Justice, and Editor in Chief for the Stetson Journal of Advocacy and the Law. Mr. Feltner is also currently a Lieutenant in the United States Coast Guard Reserve. Mr. Feltner dedicates this Article to his wife, Adrienne, who has been a constant source of knowledge and support, his work colleagues, who have inspired him and pushed him, and to his loving family and friends.
2Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011).
3The Freedom of Information Act, 5 U.S.C. § 552 (2012).
5See generally Matthew D. Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, 20 Fla. St. U. L. Rev. 543 (1993).
6Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011).
7See generally Haleigh Jones, Public Officials’ Facebook “Likes”: The Case for Leaving Regulation of Official “Likes” to the Torches and Pitchforks of Constituents, 18 SMU Sci. & Tech. L. Rev. 263 (2015); see also Matthew D. Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, 20 Fla. St. U. L. Rev. 543 (1993).
8See Fla. Att’y Gen. Op. AGO 2009–19 (Apr. 23, 2009).
9Haleigh Jones, Public Officials’ Facebook “Likes”: The Case for Leaving Regulation of Official “Likes” to the Torches and Pitchforks of Constituents, 18 SMU Sci. & Tech. L. Rev. 263, 272–74 (2015).
10U.S. Const. amends. I, IV; 18 U.S.C. § 2707 (2002).
11See generally Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137 (2002).
12See generally Julie A. Tappendorf, To Tweet or Not to Tweet: Use of Social Networking in Land Use Planning and Regulation, 34(5) Zoning & Planning L. Rep. 1 (2011).
13See generally Julie A. Tappendorf, To Tweet or Not to Tweet: Use of Social Networking in Land Use Planning and Regulation, 34(5) Zoning & Planning L. Rep. 1 (2011).
14Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 200–203 (2002).
15Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011).
16See generally Nissen v. Pierce Cty., 183 Wash. 2d 863 (Wash. 2015).
17See generally Carolyn Elefant, The “Power” of Social Media: Legal Issues & Best Practices for Utilities Engaging Social Media, 32 Energy L.J. 1 (2011).
18Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 296 (2014) (citing Okl. Att’y Gen. Op. 09–12 (2009).
19Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293–97 (2014). See also Nicole Rodriguez, Investigation: Are Officials Inadvertently Breaking Records Law Online? TCPalm (Dec. 16, 2016).
20Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293–97 (2014), citing Benjamin Niolet & Michael Bieseker, Aide: Easley Wanted E-mail Messages Deleted, McClatchy D.C. Bureau (Feb. 4, 2010). See also Nicole Rodriguez, Investigation: Are Officials Inadvertently Breaking Records Law Online? TCPalm (Dec. 16, 2016).
21Fla. Stat. § 119.011(12) (2016). See also N.C. Stat. § 132–1 (2016), Neb. Stat. § 84–712.01 (2016).
22Del. Stat. §10002(l) (2016).
23Del. Stat. §10002(l) (2016).
24Del. Stat. §10002(l)(16) (2016).
25Del. Stat. §10002(l)(19) (2016).
26Margie Fishman and James Fisher, Why Delaware Government Documents Stay Hidden, Delaware Online (Mar. 19, 2016).
27Fla. Att’y Gen. Op. AGO 2009–19 (Apr. 23, 2009); Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws?, 19 Comm. L. & Pol'y 293, 303–304 (2014).
28Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 303--304 (2014).
29Joey Senat, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? 19 Comm. L. & Pol'y 293, 304 (2014).
30Sudhin Thanawala, Court: Officials’ Emails on Private Accounts Are Public, AP (March 3, 2017); City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017).
31City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017), citing Cal. Stat. § 6252(e) (2016).
32State v. City of Clearwater, 863 So. 2d 149, 155 (Fla. 2003).
33City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).
34City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).
35City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).
36City of San Jose v. Superior Court, 389 P.3d 848, 857 (Cal. 2017).
37City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017); see also Fla. Att’y Gen. Op. AGO 2008–07 (Feb. 26, 2008).
38See Ross Rinhart, “Friending” and “Following” the Government: How the Public Forum and Government Speech Doctrines Discourage the Government’s Social Media Presence, 22 S. Cal. Interdisc. L.J. 781, 781–82 (2013).
39Tex. Reg. Text, 13 TAC 7.125 (proposed Aug. 26, 2016).
40N.M. Reg. Text, 1.13.4 (effective Nov. 30, 2015).
41City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017); Tex. Reg. Text, 13 TAC 7.125 (proposed Aug. 26, 2016).
42Kristine Nelson Fuge, Exclusionary Zoning: Keeping People in Their Wrongful Places Or a Valid Exercise of Local Control? 18 Hamline J. Pub. L. & Pol'y 148, 150 (1996).
43Wentworth v. Hedson, 493 F. Supp. 2d 559, 565 (E.D.N.Y. 2007). See generally Fair Housing Act of 1968, 42 U.S.C. §§ 3601–3619 (2012); Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).
44Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 196 (2002).
45Michael Kling, Zoned Out: Assisted-Living Facilities and Zoning, 10 Elder L.J. 187, 200–203 (2002).
46Urban Farms, Inc. v. Borough of Franklin Lakes, 431 A.2d 163, 166–68 (N.J. Super. App. Div. 1981).
47See Todd C. Frankel, Disputes Over Senior Housing Reflect “Not in My Backyard” Worries, St. Louis Post-Dispatch (Aug. 3, 2013); see also James M. Berklan, Scorned Nuns Brew Up a NIMBY Lawsuit, McKnight's (Feb. 4, 2016).
48Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011).
49See generally Urban Farms, Inc. v. Borough of Franklin Lakes, 431 A.2d 163 (N.J. Super. App. Div. 1981).
50See Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011).
51See Blagden Alley Association v. D.C. Zoning Commission, 590 A.2d 139 (D.C. 1991); Shepherdstown Observer, Inc. v. Maghan 700 S.E.2d 805 (W. Va. 2010).
52Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016).
53Barbara Clowdus, Commissioner’s Emails Uncovered in Lake Point Case, Martin County Currents (Mar. 21, 2016).
54Barbara Clowdus, Lake Point’s Court Fight Over Public Records Ends ... Almost, Martin County Currents (Feb. 24, 2017).
55Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016).
56Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 387–88 (D. Conn. 2011).
57Lidia Dinkova, Newly Discovered Emails Prompt New Trial in Lake Point’s Lawsuit Against Martin County, TCPalm (Apr. 29, 2016).
58Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution 86 Minn. L. Rev. 1137, 1201–03 (2002). (“In a series of cases, the Supreme Court has held that the First Amendment mandates that certain government proceedings be open to the public.”), citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984) (Press-Enterprise I); Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) (Press-Enterprise II). Additionally, the court in Nissen found that the Fourth Amendment to the United States’ Constitution did not shield discovery of public records. Nissen v. Pierce Cty., 183 Wash. 2d 863, 883 (Wash. 2015).
59See generally City of Ladue v. Gilleo, 512 U.S. 43 (1994).
60Morgan Watkins, Text Messages As Public Records: A New Set of Issues, The Gainesville Sun (Mar. 10, 2013).
61Christopher Cadelago & Ryan Lillis, Government Officials Can’t Use Private Devices to Hide Texts and Emails, Court Rules, The Sacremento Bee (Mar. 2, 2017).
62City of San Jose v. Superior Court, 389 P.3d 848, 853 (Cal. 2017).
63Andrew Greene, Valerie Hughes & Tobias Piering, Work-Related Text Messages on Personal Cell Phones Are Public Records Says WA Supreme Court, JD Supra (Sept. 2, 2015).
64Nissen v. Pierce Cty., 183 Wash. 2d 863, 880–81, 882 (Wash. 2015).
65Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
66City of San Jose v. Superior Court, 389 P.3d 848, 860 (Cal. 2017).
67Cowles Publishing Company v. Kootenai County Board of County Commissioners, 159 P.3d 896, 902 (Idaho 2007); compare State v. City of Clearwater, 863 So. 2d 149, 155 (Fla. 2003).
68Nissen v. Pierce Cty., 183 Wash. 2d 863 ¶¶ 35, 36 (Wash. 2015).
69Nissen v. Pierce Cty., 183 Wash. 2d 863 ¶ 36 (Wash. 2015).
71See also H.R. 2455, 79th Leg. (Or. 2017).
72Nissen v. Pierce Cty., 183 Wash. 2d 863, 879 (Wash. 2015); see also Sandra F. Chance & Christina M. Locke, Struggling with Sunshine: Analyzing the Impact of Technology On Compliance with Open Government Laws Using Florida As a Case Study, 21 Fordham Intell. Prop. Media & Ent. L.J. 1, 3 (2011). Despite this shift to adopt procedures, and relative ease in doing so, agencies are reluctant, even those that “[i]n a department all about following rules and procedures.” Mark Binker & Kelly Hinchcliffe, Texts Are Public Records but Access to Them Remains Tricky, AP (Mar. 13, 2017).
73Mark Binker & Kelly Hinchcliffe, Texts Are Public Records but Access to Them Remains Tricky, AP (Mar. 13, 2017); see Fla. Const. art. 1, § 24(a); see also Cal. Const. art. 1, § 3(b)(1).

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Casey M. Burns1 1 Casey Burns is a May 2018 graduate of Stetson University College of Law. Beginning in the fall of 2018, she will join O’Brien Hatfield, PA. She would particularly like to thank Professor Ellen Podgor for her comments and support throughout the writing of this article.

5 Stetson J. Advoc. & L. 99 (2018)

I. Introduction

In 1996, Rodney Roberts was arrested for assault. After being taken to the police station in Newark, New Jersey, Rodney believed he would be fingerprinted and released. However, after providing police with his fingerprints Rodney was informed that he was being charged with kidnapping and sexual assault. A seventeen-year-old girl had selected his photo from a line-up. Despite being “nowhere near the scene of the crime,” Rodney’s attorneys begged him to accept an offer and make a guilty plea. Rodney’s attorneys told him that if he did so he would be out of prison within two years, but if he opted to proceed to trial, the judge would likely give him a life sentence.
On July 16, 1996, Rodney pled guilty to kidnapping and was sentenced to seven years in prison. Following his release from prison in 2004, Rodney was committed to a treatment facility for violent sexual predators. Rodney maintained his innocence until 2014, when a rape kit provided DNA evidence clearing him of any wrongdoing.2 2 Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017).
Rodney’s story, while tragic, is far from a rare occurrence, and the handling of Rodney’s case represents a much broader problem across the justice system within the United States. In recent years, studies have determined that over ninety-five percent of criminal cases are resolved by plea agreements between defendants and the government, due in large part to the fact that defendants do not want to risk the consequence of failure at trial.3 3 See United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C.
Several methods utilized by prosecutors have been deemed “[some] of the most palpable injustices of plea bargaining”4 4 Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2495 (2001) (“Prosecutorial bluffing is likely to work particularly well against innocent defendants, who are on average more risk averse than guilty defendants.”) and such injustice within plea bargaining can only lead to injustice throughout the system as a whole. While plea agreements within the criminal justice system are vital to save on costs and time, and do serve the interests of justice in many ways, the system has evolved to the point where justice is being pushed aside in favor of convenience. In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly.5 5 See Boykin v. Alabama, 395 U.S. 238, 243–44 (1969) (explaining that “[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.”)
The issue that arises is, where a defendant is being threatened with a higher sentence or, in some cases, threatened with a prison term for a crime he or she did not commit, where is the line? Threats of higher sentences or more charges negate the voluntariness, knowledge, and understanding required to find a plea agreement valid. Pressures from prosecution, and defense counsel in some instances, can sometimes do more harm than good. No justice is served when an innocent man sits in prison for seven years. The system failed Rodney Roberts, and will continue to fail under its current operations.
This article will explore the shift in attitudes towards plea agreements. Part II of this article will address the historical aspects of plea bargaining in the United States, up to the present day. Part III of this article will analyze where the blame lies in the conviction of innocent defenders. Specifically, are defense counsel failing their clientele, or have prosecutors become too drawn in by the promise of convictions, rather than retaining an interest in the service of justice? Part IV of this article will explore why, in the interests of justice, the current system requires improvement. As it operates today, the plea bargaining system in the United States is verging on being unconstitutional. When defendants plead guilty to crimes they did not commit because they are accepting leniency or succumbing to fear and pressure, no one wins the case. Justice cannot be served in this manner.

II. History

Historically, the plea bargaining system has changed dramatically since the nation’s founding. “[P]lea bargaining was probably nonexistent before 1800, began to appear during the early or mid-nineteenth century, and became institutionalized as a standard feature of American urban criminal courts in the last third of the nineteenth century.”6 6 Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 7 (2013); see also Lucian E. Dervan, Plea Bargaining’s Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World, 60 Okla. L. Rev. 451, 478 (2007). In fact, beginning around the time of the Civil War, most plea agreements were struck down as unconstitutional.7 7 Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013). Despite this, plea bargaining remained a tool used by prosecutors for corruption purposes.8 8 See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–24 (1979). Yet, following the Civil War, courts continued to prohibit offers in exchange for guilty pleas, and would permit defendants to rescind such confessions on appeal.9 9 See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–21 (1979).
Around the close of the nineteenth century, overcriminalization10 10 Lucian E. Dervan, Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization, 7 J. L. Econ. & Pol'y 645, 646–47 (2011). moved plea bargaining from a corrupt, taboo practice to a mainstream solution.11 11 See Lucian E. Dervan, Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 Utah L. Rev. 51, 88 (2012); see also Donald A. Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 Penn. St. L. Rev. 1155, 1156–61 (2005). With a flood of new statutes and, subsequently, new criminal cases and defendants, courts soon became overwhelmed and began to explore options to lighten the load.12 12 Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013), citing George Fisher, Plea Bargaining’s Triumph, 108 Yale L. J. 857, 859 (2000). Regardless of its prior status as a tool of corruption, plea deals came to be offered more frequently by prosecutors hoping to expedite their case loads and clear court dockets.13 13 See Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013).
Within only eight short years, convictions resulting from pleas rose nearly twenty-five percent.14 14 See Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013); see also Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 33 (1979). Coupled with an entirely new class of defendants in the prohibition era, it became clear to prosecutors that their only option was to attempt to settle cases out of court as quickly and seamlessly as possible.15 15 See George Fisher, Plea Bargaining’s Triumph, 108 Yale L. J. 857, 860 (2000); see also Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 28 (1979). Kicking off a trend which has continued to today’s criminal justice system, by 1925 nearly ninety percent of cases were resolved by plea, almost as high a percentage as the ninety-five percent of cases which are likewise resolved today.16 16 See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 27 (1979); see also United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C.
Despite experiencing such a rapid rise throughout the twentieth century, plea bargaining did not hold up quite as well when addressed in appellate proceedings. In Walker v. Johnston, the Supreme Court found a defendant’s conviction unconstitutional, reasoning that prosecutorial use of threats and inducements rendered a plea involuntary.17 17 Walker v. Johnston, 312 U.S. 275 (1941).
Yet, over the course of the next twenty years, the Supreme Court consistently took further cases debating the constitutionality of plea bargaining and coercive tactics.18 18 See, e.g., United States v. Jackson, 390 U.S. 570 (1968); Machibroda v. United States, 368 U.S. 487 (1962). In 1967, the American Bar Association gave its blessing to the plea bargaining process.19 19 Am. Bar. Ass’n, Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty 2 (Tentative Draft 1967) (“Negotiation practices are recognized as proper, and an attempt is made to set guidelines for, and limits upon, the roles of the prosecutor, the defense attorney, and the trial judge in the bargaining process (Standards 3.1–3.3).”) Shortly thereafter, the Supreme Court finally faced the issue head-on in Brady v. United States, where — despite the then-recent trend of the Supreme Court frowning upon coercive plea deals — the Court designated only a very narrow class wherein certain conduct would render pleas involuntary:20 20 Brady v. United States, 397 U.S. 742, 750, 755 (1970).

As long as the plea was “voluntary,” which meant that it was not induced “by actual or threatened physical harm or mental coercion overbearing the will of the defendant,” the bargain would be permitted.21 21 Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 13 (2013).

While it is impossible to know exactly how many innocent defendants plead guilty following the Brady decision, certain estimates can be made to determine that number.22 22 See Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89 Harv. L. Rev. 293, 295 (1975) (“This proportion, which I shall call the implicit rate of non-conviction, cannot be directly observed, but it can be estimated for groups of defendants on the basis of certain plausible assumptions.”) Such estimates can be drawn from factors including, but not limited to:
  1. The number of criminal cases disposed in the district;
  2. Probability of conviction; and
  3. Percentage of non-convictions.23 23 Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89 Harv. L. Rev. 293, 297–98 (1975)
The Supreme Court signaled a further shift in its attitude towards plea agreements with its decision in Bordenkircher v. Hayes.24 24 Bordenkircher v. Hayes, 434 U.S. 357 (1978). Therein, the Court was faced with the issue of whether the Due Process Clause of the Fourteenth Amendment was violated when a prosecutor carried out threats made during negotiations to re-indict the defendant on more serious charges, should he not accept the plea offer. Specifically, the prosecution offered Mr. Hayes, the defendant, the prospect of a five-year recommendation to the court if Mr. Hayes pled guilty to the charges on the indictment. The prosecution then threatened that, should Mr. Hayes not accept their offer, it would seek an indictment under an alternate statute which carried with it a mandatory life sentence. Mr. Hayes did not accept the prosecution’s offer, and was subsequently found guilty by a jury. By following the decision in Brady, the Court reasoned that plea bargaining is mutually beneficial to both prosecutors and defendants,25 25 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), citing Brady v. United States, 397 U.S. 742, 751 (1970). and thus reasoned that the actions by the prosecution in the instant case were within the bounds of prosecutorial discretion.26 26 Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).
Following the events of September 11, 2001, two theories regarding plea bargaining have been critiqued and utilized by both prosecutors and defense counsel. They are known as the Administrative Theory and the Shadow-of-Trial Theory.27 27 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239 (2011).
The Administrative Theory reasons that the shift in attitude towards favoring plea agreements resulted from a rise in prosecutorial power.28 28 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 242 (2011). Specifically, the theory places the prosecutor and defendant in two separate corners of the boxing ring, where the prosecutor is in charge — mandating terms and conditions.
Conversely, the defendant in the other corner wields little to no power, and becomes a passive party whose “only power rests in the ability to accept or reject the government’s offer.”29 29 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 246 (2011). One suggested reason for the roles the parties play under this theory is that plea bargaining is not a “bargain” at all, but instead is a chance for the prosecutor to lay down an appropriate punishment for a defendant, which can ultimately save on court costs. Under this theory, most scholars seem to opine that defendants are inherently placed in a submissive position, in contrast to the domination rendered by prosecutors in dictating the outcome of cases from the outset.30 30 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 247 (2011), quoting Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37 (1983). See also Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 Stan. L. Rev. 1409, 1409 (2003) In its most extreme construction, the theory reasons that plea bargaining places prosecutors in a position to become so powerful that defendants lose all autonomy when deciding whether or not to accept a plea offer.31 31 John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12–13 (1978).
Conversely, the Shadow-of-Trial Theory reasons that plea bargaining is a mutually beneficial process, whereby the parties essentially contract with one another for a favorable outcome. Some scholars assert that plea bargaining has grown from a one-sided process, whereby the prosecutor holds all cards, to a balancing act where prosecutors and defendants can bargain and reach an agreement.32 32 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 242, 250 (2011); see also Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 74 (2009). One major benefit cited for both prosecutors and defendants lies in cost. Specifically, it is reasoned that both prosecutors and defendants face enormous costs by the time a case goes entirely through the criminal system. It follows that if those costs can be avoided, the incentive to bargain and reach an agreement becomes clear and mutually beneficial for both parties.33 33 See Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1948 (1992) (“Criminal trials are costly for defendants, and even more so for prosecutors.”) According to this theory, there are three questions that will determine the terms of the bargained-for agreement.34 34 Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009). Specifically, scholars look to:
  1. The trial sentence anticipated if the case were tried and resulted in a conviction;
  2. The likelihood that a trial will result in a conviction; and
  3. The resource costs of trying the case.35 35 Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009), citing Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464 (2001); Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 58 (1966); and Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1941 (1992).
Proponents of the Shadow-of-Trial Theory believe it is more balanced and provides defendants with a more active role in their own plea bargaining process.
Under both theories, defense counsel, prosecutors, and judges alike favor one goal — avoiding “the price of the plea.”36 36 Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009). The price of plea, when calculated correctly, should be a combination of the three factors mentioned above; the anticipated trial sentence and the likelihood of conviction during a trial, apart from resources that are saved by not proceeding to trial.37 37 Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77–78 (2009).

III. Reasons for the Issue — Who Is to Blame?

Discretion and the ability to extend plea offers are only two of the many powers exercised by prosecutors in the United States.38 38 28 U.S.C. § 594 (a). By that standard, it would be easy to simply place blame on the prosecutorial system as a whole, write a new rule which further curtails how far prosecutors can go when engaging in plea negotiations, and call it a problem solved. Unfortunately, as we see in cases like that of Rodney Roberts, the problem of involuntary or coerced pleas goes far beyond the power of the prosecutor.

Defense Attorneys and Their Clients

The right to counsel is the right to the effective assistance of counsel.39 39 Strickland v. Washington, 466 U.S. 668, 686 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970), applying Gideon v. Wainwright, 372 U.S. 335 (1963). The Supreme Court recognized in 1985 that trial counsel can be ineffective even if the defendant opts to not go to trial.40 40 Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[The focus is] on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.”) It appears, however, that much of the time the interests of the defense attorney may not be the best interest of the client. A dichotomy arises wherein guidance through the plea process can become compromised in favor of other benefits.41 41 Vanessa A. Edkins, Defense Attorney Recommendations and Client Race: Does Zealous Representation Apply Equally to All? 35 Law & Hum. Behav. 413, 416 (2011) (“More recent research looking at criminal defense attorneys focused on not just severity of sentence and likelihood of conviction but also included the most legally relevant factor in any plea agreement: the defendant’s preference.”)
A study suggested certain factors that weigh more heavily on the defendant’s mind when deciding to accept a plea offer. Such factors included length of sentence, evidence strength, and the defendant’s preference in the instant case. Similarly, the study found that defense attorneys focus on the strength of evidence, the length of potential sentence, and the defendant’s indication regarding whether he would like to take his case to trial.42 42 Vanessa A. Edkins, Defense Attorney Recommendations and Client Race: Does Zealous Representation Apply Equally to All? 35 Law & Hum. Behav. 413, 416 (2011); G.M. Kramer et al., Plea Bargaining Recommendations by Criminal Defense Attorneys: Evidence Strength, Potential Sentence, and Defendant Preference, 25 Behav. Sci. & L. 573 (2007). Because both the defense attorney and her client value three vital balancing factors when determining whether to proceed to trial, one could assume that the solution would be clear for each defendant based on the circumstances surrounding each individual case. Specifically, it would be easy for an innocent defendant and his counsel to decide to proceed to trial:
  1. Any evidence against him will be weak because he is innocent;
  2. Sentencing thereby becomes irrelevant; and
  3. The innocent defendant will clearly prefer to not plead guilty to a crime he did not commit.
However, “innocence becomes irrelevant as the real question becomes whether it is worth the risk of testing an innocent claim.”43 43 Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chi-Kent L. Rev. 77, 84 (2010).
The crux of the issue lies in fear. Defendants are afraid of the unknown, and defense attorneys are afraid of letting their clients down. Rather than fight for a defendant who is adamant about his innocence, attorneys and their clients weigh the factors, look at the lay-person status of jury members, and decide, more often than not, that the risk of a trial is not worth the reward.44 44 Shamena Anwar et al., Jury Discrimination in Criminal Trials, Economic Research Initiatives at Duke (ERID) Working Papers Series No. 55; United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C. It is almost impossible to know what standard of evidence jurors apply in each individual case, making such risk very difficult to calculate.45 45 Shamena Anwar et al., Jury Discrimination in Criminal Trials, Economic Research Initiatives at Duke (ERID) Working Papers Series No. 55 at 5 (“In fact, proving that jurors apply different standards of evidence to heterogeneous groups of defendants is incredibly difficult.”) Several tests, such as the experiment conducted by ERID researchers, as well as The Innocence Project, seek to understand why the system works the way it does.46 46 Melissa B. Russano, Investigating True and False Confessions with a Novel Experimental Paradigm, 16 Psychol. Sci. 481 (2005). Unfortunately, it is nearly impossible to recreate “the same mentally anguishing decision defendants in the criminal justice system must make every day.”47 47 Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 33 (2013).
One factor which tends to motivate most players in the plea bargaining game is finance. It is plain to see why a defense attorney may wish for his client to enter into a plea agreement — trials are incredibly costly.48 48 Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016) (“Extensive procedural protections make trials expensive, while prosecutorial discretion and negotiation tactics are cheap and unregulated.”) On the other hand, depending on the contract between client and counsel, an attorney may have more of an incentive to encourage his client to proceed to trial for merely selfish and financial reasons.49 49 Peter Lushing, The Fall and Rise of the Criminal Contingent Fee, 82 J. Crim. L. & Criminology 498, 500 (1991) (“Contingent fees for criminal defense attorneys — agreements under which the attorney’s fee depends upon the result obtained in the case — are almost uniformly considered unethical and illegal.”) Further, regardless of the cost to the attorney, most defendants are not in a position to pay an unlimited amount for their defense. In that instance, accepting a plea offer from the prosecution can look even more appealing.50 50 Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1935 (1992) (“Criminal trials are costly for defendants ... these costs can be saved, and the gains split between the parties, by reaching a bargain early in the process.”)
When a defendant such as Rodney Roberts is faced with increasing costs and charges which, to him, seem to be appearing out of nowhere, not to mention an attorney who is pushing him to accept a plea offer for a shorter sentence, shying away from a trial appears to be the only logical option. The question then arises, why is the court system the legal safeguard of this nation, not taking steps to protect these types of defendants?
As it is built today, the plea negotiation process is almost exclusively reliant upon the willingness of the prosecutor to extend an offer, fair or otherwise. Beyond that, there are factors weighing heavily on defense attorneys which often leave the defendant worse off.51 51 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 252 (2011), citing Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464 (2001) (“Poor lawyering, agency costs, and lawyers’ self interest are prime examples, as are bail rules and pretrial detention.”) All of which raises the question of what are the courts doing about this? A deeper look at the issue appears to show that courts have tasked defense attorneys with the important duty of acting as the only safeguard to protect defendants from being coerced into accepting plea offers.

The Court

As highlighted previously, United States courts spent more than a century fighting against plea bargaining as a common tool for prosecutors. After all, the Sixth Amendment seeks to protect, specifically, the right to a trial by jury:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]

The departure from these principles appears to stem from the Brady decision, but even so, the Supreme Court still rendered its decision in Brady hesitantly:

This is not to say that guilty plea convictions hold not hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury.52 52 Brady v. United States, 397 U.S. 742, 757 (1970).

Recognizing that plea negotiations are not a better solution than proceeding to a trial for a defendant, it appears odd that the Court would continue to proscribe such actions. In accordance, the Court mandated that it would “continue to [take great precautions], whether conviction is by plea or trial.”53 53 Brady v. United States, 397 U.S. 742, 757 (1970). The Court further went on to mandate that should prosecutors take advantage of its ruling and begin to make plea negotiations the norm, the system has failed, and “the plea-bargaining machine will have ventured into the realm of unconstitutionality.”54 54 Brady v. United States, 397 U.S. 742, 757 (1970). See also Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 Utah L. Rev. 51, 88 (2012).
So, what happened? It appears that the promise by the Supreme Court to continue to scrutinize such arrangements has been long forgotten and fallen into the shadows in favor of a lighter docket and cheaper criminal process. A main goal of judges today is to accept plea agreements, wrap up cases, and clear out their dockets. An explanation offered frequently as to why judges are straying from Brady guidance may lie in their desire to please the public. However, as is to be expected, the public is never pleased. A major reason why federal courts did away with mandatory sentencing guidelines related to the immense public outcry against such mandates.55 55 See Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U.L. Rev. 911, 939 (2006) (“[J]udges can induce quick pleas and clear their dockets.”) Every case is different, every defendant is different, and the entire scheme appears unjust and in direct contrast to the values of the Constitution.
The shifting attitude of the courts towards commonplace plea bargaining can come with benefits. Again, costs are greatly decreased if defendants are not going through the entire trial process. The court is spared the cost and time of going through each pretrial hearing, voir dire, and a full trial, plus, in some instances, a separate sentencing hearing. Attorneys are free to focus their attention on other cases once earlier cases are resolved with a plea. But courts cannot become neglectful. It appears as though courts put too much trust on defense counsel, who are often overworked, underpaid, underqualified, and have undeveloped records.56 56 See Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1126 (2011) (“The Court put great faith in competent defense counsel as the only substantial safeguard.”)
In Rodney Roberts’ case, Rodney attributed his guilty plea to a crime he did not commit in part to his defense attorney.57 57 Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project. Specifically, Rodney felt that “[o]ne of the biggest problems was that my attorney — my public defender — who at the time had maybe 70 or 80 cases. And like 25 or 30 of those clients were in the bullpen — the holding area before you go to court — with me. He is seeing everyone of us like an assembly line process ... all he was just trying to do was reduce his case load.”58 58 Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project.
As courts more frequently ignore the mandated safeguards of Brady, the aversion to plea agreements will become even more obsolete. Without the defense counsel to protect them, defendants are left to plead guilty out of fear, or hope for a better sentence.59 59 Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Calif. L. Rev. 652, 652–53 (1981) (“Criminal defendants today plead guilty in overwhelming numbers primarily because they perceive that this action is likely to lead to more lenient treatment than would follow conviction at trial.”) For Rodney, he felt “that the lawyer was the one person there to help me — he was my lawyer — and that everyone else was against me, not realizing how much the lawyer was a part in the whole coercion.”60 60 Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project. If the court does not protect defendants, both prosecutors and neglectful defense attorneys will play right into the prohibited actions of Brady: providing irresistible plea offers not to serve justice, but to simply clear the case.

Prosecutors — The Power Players

While the courts have left defense counsel as the only line of defense between their clients and unconstitutional plea bargaining, prosecutors are arguably the most important and powerful players in the pleading process.

Plea bargains are not consensual agreements entered into by defendants after adversarial negotiation. Rather, the prosecutor substantially dictates the terms of the plea agreements in most cases. ‘Plea bargaining’ is in reality the prosecutor’s unilateral administrative determination of the level of the defendant’s criminal culpability and the appropriate punishment for him.61 61 Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U.L. Rev. 239, 247 (2011).

As articulated above, following Brady, prosecutors were given the express task of extending plea offers while keeping sure that the pleas themselves were given freely and voluntarily. While the cost of a trial is notoriously expensive and time-consuming, critics are now beginning to question whether those benefits outweigh the costs they themselves spur. The duty of the prosecutor is to seek justice, not merely to convict.62 62 Am. Bar. Ass’n, Functions and Duties of the Prosecutor, ABA Standards for Criminal Justice Standard 3-1.2. The system, as it exists today, incentivizes prosecutors to seek only convictions. By extending plea offers to virtually every defendant, and by settling ninety-six percent of criminal cases through plea bargaining, suffice it to say prosecutors are favoring low costs as opposed to justice.
Beyond this, prosecutors have begun to utilize the plea process as a method of checking convictions off on a list, rather than weighing evidence. As Stephanos Bibas has argued, prosecutors are concerned about their reputations. As such, rather than trying cases where the evidence is weak and a defendant has a fighting chance, prosecutors will seek to reach a plea agreement and call it a win:

This dynamic is the opposite of what one might expect: strong cases should plead guilty because trial is hopeless, while weak cases have genuine disputes that merit resolution at trial.63 63 Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2472 (2001) (“Prosecutors are particularly concerned about their reputations because they are a politically ambitious bunch.”)

This further tilts against the favor of the defendant because prosecutors are in turn motivated to win by a landslide in a public setting, like a high-profile court case complete with a jury trial.64 64 Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2472 (2001) (“Prosecutors are particularly concerned about their reputations because they are a politically ambitious bunch.”)
At this point in time, prosecutors appear to be stuck between a rock and hard place. With ever-increasing charges being laid against criminal defendants, the system is flooded. It is practically impossible for every defendant to go through an entire trial.65 65 Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016) (“Right now, there are simply more defendants than the system can afford to give trials.”) As such prosecutors, needing to close out their cases, are incentivized to offer deals. In turn, defendants are given an offer they cannot refuse. Juries become, more or less, irrelevant.66 66 Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016). While cutting such corners has not only been deemed an acceptable practice of prosecutors, it has become necessary. The issue lies in determining at which point these practices cross the line from acceptable to coercive, and therefore unconstitutional.
Imagine, after going on a crime spree, a defendant is arrested and charged with six counts of mail fraud.67 67 18 U.S.C. § 1341. While meeting with the prosecutor, he offers a deal: plead guilty to one count and the prosecutor will recommend a sentence of twenty years. If the defendant refuses the offer, the prosecutor will seek to convict the defendant on all six counts and recommend a twenty-year sentence for each individual charge.
In the criminal system today, this practice is not only accepted, but encouraged and utilized frequently. To researchers and defendants alike the choice can seem obvious: accept the deal, move on with the lesser sentence. However, pleas are meant to be given freely and voluntarily, away from any influence or coercion. By offering such an irresistible deal, while at the same time attaching a veiled threat of a harsher sentence should the defendant refuse, it appears the system has failed. Prosecutors have forsaken their oath to seek justice by taking advantage of leniencies the plea system has afforded them. Such corrupt practices cannot be deemed constitutional.

IV. Is This Actually Problematic?

Perhaps, if the system has operated the way it does since the Brady decision, for nearly fifty years, this cannot be considered a problem. Unfortunately, statistics show us that far too often, innocent defendants are sentenced for crimes they did not commit. To date, the National Registry of Exonerations has listed ninety-seven individuals who have been exonerated in 2017 alone.68 68 Current Exonerations, The National Registry of Exonerations (Nov. 9, 2017).
In 2016, of the sixty-one convictions of defendants who were prosecuted for drug crimes, fifty-nine individuals pled guilty, only to be exonerated. A study conducted by the University of Michigan demonstrates that the number of exonerations in drug cases has been increasing significantly in the past three years alone, with nearly twenty more individuals exonerated in 2016 than in 2014. The same study highlights that while a smaller proportion of exonerated defendants accepted plea offers, a significant number of such cases do appear.69 69 Drug Crimes in 2016 (March 7, 2017) The National Registry of Exonerations.
Table 1: Exonerations of Convictions Made By Guilty Plea
Sexual Assault 8% (37/466)
Drug Crimes 66% (105/159)
Robbery 12% (11/94)
Sex Offender Registration 78% (7/9)
All Exonerations 15% (261/1,700)
The table above, drawn from data taken from a 2015 study, depicts exonerations in cases strictly resulting from guilty pleas. As shown, nearly eighty percent of registered sex offenders who were exonerated in 2015 alone had pled guilty to a crime which science could prove they did not commit. While the percentages for crimes such as murder or child sex abuse are much lower, the study offers a reason for this phenomenon:

Innocent defendants who plead guilty almost always get lighter sentences than those who are convicted at trial — that’s why they plead guilty — so there is less incentive to pursue exoneration. In many cases, they would rather put the injustice behind them than engage in prolonged legal battles to prove their innocence.70 70 Innocents Who Plead Guilty, National Registry of Exonerations.

While the study related only to innocent defendants, the same reasoning can easily be applied to any defendant who accepts a plea offer — defendants who plead guilty almost always get lighter sentences than those who are convicted at trial. The question must be addressed of what justice is being served. Innocent men and women are sitting in prison for decades on end, and in several instances those sentences are a direct result of a plea agreement. Regardless of innocence, defendants are opting for plea agreements rather than battling to mitigate circumstances or exercising their constitutional right to a full trial by a jury of their peers.71 71 See DNA Exonerations in the United States, Innocence Project Anniversary.
It cannot be argued that the harshest sentence a defendant can face is the death penalty. Four-point one percent of defendants who are sentenced to death are later proven innocent. This percentage equates to roughly one in twenty-five persons on death row.72 72 Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015). Professor Samuel Gross asked, why do innocent defenders plead guilty? His explanation:

When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.73 73 Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015).

Professor Gross also offers a solution, but one which will likely prove to be vastly unpopular: spend money, investigate each case more carefully, take fewer quick guilty pleas, conduct more trials, and ensure that the trials that are conducted are conducted well. He concludes his article with a thought which summarizes the criminal justice system perfectly: what we do now is not good enough.74 74 Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015).
Proponents of the system as it stands now will no doubt argue that plea bargaining is just that — a bargain. Specifically, the process of plea bargaining is meant to be a back-and-forth between prosecution and defense, where ultimately an agreement is reached which serves the best interests of both the public and the defendant. Unfortunately, the process has become so one-sided that today it can hardly be considered plea “bargaining” at all. Instead, defendants are given two bleak options: accept what the prosecutors offer now or face worse later.75 75 Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 425 (2008) (“[W]hen prosecutorial lenience is the only reliable means to avoid a draconian sentence, the prosecutor can effectively dictate the terms of the ‘deal”’).
This method leaves defendants with very few options, particularly for those cases of innocent defendants. Although proponents of the current operation will reason that the Supreme Court in Brady meant, quite literally, physical and mental torture or manipulation must be avoided, the system is not far off today. The threats utilized by prosecutors today, while not physical, are still very much present. “We threaten him with a materially increased sanction if he avails himself of his right.” While it may be of a different kind, “[p]lea bargaining, like torture, is coercive.”76 76 John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12–13 (1978).
So, what can be done? First, it must be universally recognized that defendants are not accepting plea offers because they are guilty of the underlying crimes. They are not accepting plea offers to accept responsibility for their actions. Defendants, in most instances, accept plea offers because they are afraid that if they do not the end result will be much worse. Defendants who accept plea offers out of fear are not entering into “voluntary” agreements, as mandated by the Supreme Court throughout its history. Such pressures from prosecution, such as “take-it-or-leave-it” offers capitalize on the exact mental coercion the Court in Brady warned against.
One possible solution to the defendant’s predicament is to place caps on what prosecutors can offer. Specifically, courts can regulate to ensure that plea offers are not so lucrative that a defendant could not possibly turn them down. Unfortunately, there are risks associated with being so stringent. In United States v. Booker, the Supreme Court recognized that mandatory sentencing guidelines, regardless of potential departures, violated the Sixth Amendment.77 77 United States v. Booker, 543 U.S. 220, 244 (2005). Specifically, the Court reasoned that while mandatory guidelines may be convenient, convenience could not outweigh justice.78 78 United States v. Booker, 543 U.S. 220, 244 (2005), quoting Blakely v. Washington, 542 U.S. 296, 313 (2004) (“However convenient these new methods of trial may appear at first ... let it be again remembered that delays, and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more substantial matters.”) Assuming the Court today follows the decision in Booker, the Court will be hesitant to place strict caps on prosecutorial exercises of power.
Instead, a solution to the defendant’s predicament could lie in willingness. Parties must accept that it will take time to go through each case fairly and accurately, and be willing to do so. Courts must be willing to hear every case, check the work of every prosecutor and defense attorney, and ensure that justice is being served in the appropriate manner in each and every case. Beyond that, it must be understood that the cost of a trial is not more dire than the cost of spending countless years in prison. Taxpayer money is vital and precious, but ensuring that legal operations follow the letter of law is more vital.
Regardless of which solution is ultimately implemented, something must change. The first step to achieving such a change is recognizing the existence of a problem. Brady has been forsaken in the interest of saving money and time, and such digression from the Court’s warning against such action must be rectified immediately.

V. Conclusion

The plea bargaining system in the United States is verging on unconstitutional as it operates today. When defendants plead guilty to crimes they did not commit because they are accepting leniency or succumbing to fear and pressure, no one wins the case. Justice cannot be served in this manner. Historically, the United States has strayed from key values it fought for over the course of two centuries.
The blame for such strays is threefold. Prosecutors have taken advantage of the power granted to them in their capacities as ministers of justice. Defense attorneys, too often, give up on their clients for what is convenient, or in some cases for what will make them more money. Courts have become too comfortable, trying to clear their dockets rather than ensuring that each defendant is treated fairly and equally. Solutions are available for implementation, but are unappealing to too many parties.
Today, Rodney Roberts is a free man.79 79 Antoine Goldet, This Innocent Man Pleaded Guilty to a Crime He Didn’t Commit, Reader's Digest. In 2015, he filed a federal civil rights lawsuit, wherein he is seeking damages from the Newark Police Department, the Essex County Prosecutor’s Office, and other unnamed parties.80 80 Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017). However, when asked about his ordeal, Rodney does not place blame with the police, the prosecutors, his attorneys, or the judge, but instead focuses his resentment on the system as a whole. “[T]o Roberts, the system that by design deprives the vast majority of defendants of their right to a trial — not its foot soldiers — is the guilty party.”81 81 Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017).

Footnotes

1Casey Burns is a May 2018 graduate of Stetson University College of Law. Beginning in the fall of 2018, she will join O’Brien Hatfield, PA. She would particularly like to thank Professor Ellen Podgor for her comments and support throughout the writing of this article.
2Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017).
3See United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C.
4Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2495 (2001) (“Prosecutorial bluffing is likely to work particularly well against innocent defendants, who are on average more risk averse than guilty defendants.”)
5See Boykin v. Alabama, 395 U.S. 238, 243–44 (1969) (explaining that “[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.”)
6Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 7 (2013); see also Lucian E. Dervan, Plea Bargaining’s Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World, 60 Okla. L. Rev. 451, 478 (2007).
7Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013).
8See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–24 (1979).
9See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–21 (1979).
10Lucian E. Dervan, Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization, 7 J. L. Econ. & Pol'y 645, 646–47 (2011).
11See Lucian E. Dervan, Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 Utah L. Rev. 51, 88 (2012); see also Donald A. Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 Penn. St. L. Rev. 1155, 1156–61 (2005).
12Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013), citing George Fisher, Plea Bargaining’s Triumph, 108 Yale L. J. 857, 859 (2000).
13See Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013).
14See Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 6 (2013); see also Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 33 (1979).
15See George Fisher, Plea Bargaining’s Triumph, 108 Yale L. J. 857, 860 (2000); see also Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 28 (1979).
16See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 22, 27 (1979); see also United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C.
17Walker v. Johnston, 312 U.S. 275 (1941).
18See, e.g., United States v. Jackson, 390 U.S. 570 (1968); Machibroda v. United States, 368 U.S. 487 (1962).
19Am. Bar. Ass’n, Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty 2 (Tentative Draft 1967) (“Negotiation practices are recognized as proper, and an attempt is made to set guidelines for, and limits upon, the roles of the prosecutor, the defense attorney, and the trial judge in the bargaining process (Standards 3.1–3.3).”)
20Brady v. United States, 397 U.S. 742, 750, 755 (1970).
21Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 13 (2013).
22See Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89 Harv. L. Rev. 293, 295 (1975) (“This proportion, which I shall call the implicit rate of non-conviction, cannot be directly observed, but it can be estimated for groups of defendants on the basis of certain plausible assumptions.”)
23Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89 Harv. L. Rev. 293, 297–98 (1975)
24Bordenkircher v. Hayes, 434 U.S. 357 (1978).
25Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), citing Brady v. United States, 397 U.S. 742, 751 (1970).
26Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).
27Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239 (2011).
28Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 242 (2011).
29Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 246 (2011).
30Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 247 (2011), quoting Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37 (1983). See also Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 Stan. L. Rev. 1409, 1409 (2003)
31John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12–13 (1978).
32Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 242, 250 (2011); see also Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 74 (2009).
33See Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1948 (1992) (“Criminal trials are costly for defendants, and even more so for prosecutors.”)
34Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009).
35Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009), citing Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464 (2001); Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 58 (1966); and Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1941 (1992).
36Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77 (2009).
37Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73, 77–78 (2009).
39Strickland v. Washington, 466 U.S. 668, 686 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970), applying Gideon v. Wainwright, 372 U.S. 335 (1963).
40Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[The focus is] on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.”)
41Vanessa A. Edkins, Defense Attorney Recommendations and Client Race: Does Zealous Representation Apply Equally to All? 35 Law & Hum. Behav. 413, 416 (2011) (“More recent research looking at criminal defense attorneys focused on not just severity of sentence and likelihood of conviction but also included the most legally relevant factor in any plea agreement: the defendant’s preference.”)
42Vanessa A. Edkins, Defense Attorney Recommendations and Client Race: Does Zealous Representation Apply Equally to All? 35 Law & Hum. Behav. 413, 416 (2011); G.M. Kramer et al., Plea Bargaining Recommendations by Criminal Defense Attorneys: Evidence Strength, Potential Sentence, and Defendant Preference, 25 Behav. Sci. & L. 573 (2007).
43Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chi-Kent L. Rev. 77, 84 (2010).
44Shamena Anwar et al., Jury Discrimination in Criminal Trials, Economic Research Initiatives at Duke (ERID) Working Papers Series No. 55; United States Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure C.
45Shamena Anwar et al., Jury Discrimination in Criminal Trials, Economic Research Initiatives at Duke (ERID) Working Papers Series No. 55 at 5 (“In fact, proving that jurors apply different standards of evidence to heterogeneous groups of defendants is incredibly difficult.”)
46Melissa B. Russano, Investigating True and False Confessions with a Novel Experimental Paradigm, 16 Psychol. Sci. 481 (2005).
47Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defender’s Dilemma: Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 104 J. Crim. L. & Criminology 1, 33 (2013).
48Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016) (“Extensive procedural protections make trials expensive, while prosecutorial discretion and negotiation tactics are cheap and unregulated.”)
49Peter Lushing, The Fall and Rise of the Criminal Contingent Fee, 82 J. Crim. L. & Criminology 498, 500 (1991) (“Contingent fees for criminal defense attorneys — agreements under which the attorney’s fee depends upon the result obtained in the case — are almost uniformly considered unethical and illegal.”)
50Robert E. Scott & William J. Stuntz, Plea Bargaining as a Contract, 101 Yale L. J. 1909, 1935 (1992) (“Criminal trials are costly for defendants ... these costs can be saved, and the gains split between the parties, by reaching a bargain early in the process.”)
51Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U. L. Rev. 239, 252 (2011), citing Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464 (2001) (“Poor lawyering, agency costs, and lawyers’ self interest are prime examples, as are bail rules and pretrial detention.”)
52Brady v. United States, 397 U.S. 742, 757 (1970).
53Brady v. United States, 397 U.S. 742, 757 (1970).
54Brady v. United States, 397 U.S. 742, 757 (1970). See also Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 Utah L. Rev. 51, 88 (2012).
55See Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U.L. Rev. 911, 939 (2006) (“[J]udges can induce quick pleas and clear their dockets.”)
56See Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1126 (2011) (“The Court put great faith in competent defense counsel as the only substantial safeguard.”)
57Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project.
58Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project.
59Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Calif. L. Rev. 652, 652–53 (1981) (“Criminal defendants today plead guilty in overwhelming numbers primarily because they perceive that this action is likely to lead to more lenient treatment than would follow conviction at trial.”)
60Carlita Salazar, Rodney Roberts Talks About Pleading Guilty Out of Fear, Not Guilt: ‘My Life Was on the Line’, The Innocence Project.
61Lucian E. Dervan, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Ga. St. U.L. Rev. 239, 247 (2011).
62Am. Bar. Ass’n, Functions and Duties of the Prosecutor, ABA Standards for Criminal Justice Standard 3-1.2.
63Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2472 (2001) (“Prosecutors are particularly concerned about their reputations because they are a politically ambitious bunch.”)
64Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2472 (2001) (“Prosecutors are particularly concerned about their reputations because they are a politically ambitious bunch.”)
65Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016) (“Right now, there are simply more defendants than the system can afford to give trials.”)
66Gregory M. Gilchrist, Trial Bargaining, 101 Iowa L. Rev. 609, 611 (2016).
68Current Exonerations, The National Registry of Exonerations (Nov. 9, 2017).
69Drug Crimes in 2016 (March 7, 2017) The National Registry of Exonerations.
70Innocents Who Plead Guilty, National Registry of Exonerations.
71See DNA Exonerations in the United States, Innocence Project Anniversary.
72Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015).
73Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015).
74Samuel R. Gross, The Staggering Number of Wrongful Convictions in America, The Washington Post (July 24, 2015).
75Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 425 (2008) (“[W]hen prosecutorial lenience is the only reliable means to avoid a draconian sentence, the prosecutor can effectively dictate the terms of the ‘deal”’).
76John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12–13 (1978).
77United States v. Booker, 543 U.S. 220, 244 (2005).
78United States v. Booker, 543 U.S. 220, 244 (2005), quoting Blakely v. Washington, 542 U.S. 296, 313 (2004) (“However convenient these new methods of trial may appear at first ... let it be again remembered that delays, and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more substantial matters.”)
79Antoine Goldet, This Innocent Man Pleaded Guilty to a Crime He Didn’t Commit, Reader's Digest.
80Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017).
81Ricky Riley, This Man’s Heartbreaking Story Shows How Lawyers Coerce Too Many Innocent People To Plead Guilty, Atlanta Black Star (Feb. 4, 2017).

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Shaheen Nouri, Esq.1 1 Shaheen Nouri, Esq., is an alumnus of Stetson University College of Law. Mr. Nouri resides in Tampa, Florida, and his primary area of practice is appellate law.

5 Stetson J. Advoc. & L. 155 (2018)

I. An Early History of Life Tenure

To the astonishment of few and the disbelief of fewer, the Constitutional provisions that provide for the life tenure of judges do not do so explicitly. This Constitutional language grants that judges, particularly those Article III judges of the Supreme Court of the United States and of its inferior courts, shall “hold their Offices during good behavior.”2 2 U.S. Const. art. III, § 1. A historical examination of English law will show that, for quite some time, it was standard practice for a judge to serve for a duration of time dictated by the Crown, or at the pleasure and the will of the Crown, to be terminated at any time thereafter by the Crown.3 3 William G. Ross, The Hazards of Proposals to Limit the Tenure of Federal Judges and to Permit Judicial Removal Without Impeachment, 35 Vill. L. Rev. 1063, 1067 (1990).
Any governing principle or ideology comes with a spectrum of opinions as to its validity. The debate surrounding life tenure of judges is no exception. Perhaps the most prominent proponents of life tenure for our judiciary were the Federalists, of whom Alexander Hamilton was arguably the most vocal. Hamilton, joined by fellow Federalist thinkers, opined on this issue within the published works that would be known as the Federalist Papers. In Federalist No. 78, Hamilton authored that permanency of judicial tenure would provide the judiciary with “firmness and independence.” Hamilton believed that the inherent effect of life tenure on the workings of the judiciary was “the citadel of the public justice and the public security.”4 4 Alexander Hamilton, The Federalist No. 78. Another prominent devotee to the concept of life tenure, Thomas Jefferson zealously advocated for the position until the latter portion of his career, in which he experienced a paramount shift in many of his political positions and ideologies. As a supporter of life tenure initially, Jefferson provided some of the most direct opinions on the matter, stating that judges should “hold estates for life in their offices.”5 5 Evan Haynes, The Selection and Tenure of Judges 93 (1944).
The Anti-Federalists of the day, as sure as the laws of nature might dictate, presented an equal and opposite reaction to the notion of life tenure. The most notable of whom was arguably Benjamin Gale. Gale, a staunch opponent of life tenure, took to public forum to express his distrust for the permanence of the judiciary. Gale and many Anti-Federalists alike believed that the federal judiciary would witness a degree of power so as to allow it to impinge on the very liberty of society.6 6 Benjamin Gale, Speech Before the Connecticut Convention Election (Nov. 12, 1787), reprinted in 3 The Documentary History of the Ratification of the Constitution 428 (1976). It is important to note that, at the onset of these debates, the active courts were comprised of judges which the legislature appointed on an annual basis. Gale stated that the new courts as proposed by the Federalists would “eat up [their] courts, of which [their] representatives [had at the time] the right of appointing judges annually.”7 7 Evan Haynes, The Selection and Tenure of Judges 93 (1944). On the whole, the Anti-Federalist viewpoint stressed that a truly independent judiciary by virtue of life tenure was a danger in that it saw no policing authority, while the proponent viewpoint of the Federalists held that life tenure would allow the judiciary to be, ipso facto, this exact authority to the remnant branches of government. This check on the remaining two branches was of greater import to the Federalists, and remains of greater concern to the supporters of life tenure today.
Thomas Jefferson, formerly a staunch advocate of life tenure, became an advocate against his prior positions soon after his assumption of office as the President of the United States.8 8 See Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 694–95 (1969). The landmark decision of Marbury v. Madison provided precedent and justification, by way of Chief Justice John Marshall, to the function and responsibility of the judiciary to interpret the meaning of the Constitution. Marshall wrote of this function to be “the province and duty of the judicial department.”9 9 Marbury v. Madison, 5 U.S. 137 (1803). Jefferson would later convey his belief that the opinion of the Court in Marbury gave way to a precarious doctrine that would place the greater society “under the despotism of an oligarchy.”10 10 Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820). In many ways, this decision was viewed by the Anti-Federalists as the very thing they had come to fear.

II. The Contemporary Dynamic Surrounding Life Tenure

The notion that the language of the Constitution calls for life tenure is by no means a novel interpretation. Documents from the drafting era of our country illustrate this interpretation of, and intention by, the language of the Constitution, none more candid than Alexander Hamilton’s Federalist No. 79, stating that if judges behaved properly in their positions, they would be “secured in the places for life.”11 11 Alexander Hamilton, The Federalist No. 79. Recorded discourses during the ratification conventions discuss the term of the Presidency as a four-year term, while juxtaposing it with the terms of federal judges who may “continue for life” in their terms if they continue to show good behavior.12 12 Thomas McKean, Speech before the Pennsylvania Convention (Dec. 10, 1787), reprinted in 2 The Documentary History of the Ratification of the Constitution (Merrill Jensen ed., 1976); Evan Haynes, The Selection and Tenure of Judges 540–41 (1944). Thus, the tradition that we have collectively followed when appointing and confirming judges to federal courts has been one of life tenure or, as described in a more particular manner, a tenure that allows a judge to be secure in their position for the remainder of their legal career so long as they demonstrate good behavior.
Naturally, those opposed to the tradition of life tenure within the judiciary remained vocal in their concerns. However, they were contained in their efforts for quite some time between the onset of the debate and the issuance of the opinion in Marbury, and again between that opinion and future opinions of the High Court.13 13 Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 694–95 (1969). The Marbury decision saw the Supreme Court define its power and authority, but federal law would not again be stricken down in a manner that mobilized the Anti-Federalists until the Court deemed a federal statute unconstitutional in the disreputable Dred Scott decision.14 14 See Dred Scott v. Sandford, 60 U.S. 393 (1857). Thereafter, the flame of disagreement was reignited as opposition to life tenure was reintroduced in search of solutions for what some viewed to be a problematic judiciary structure. With this renewal came equal push for term limits on one side and for an elected judiciary on the other.
While pushes existed by means of public discourse and introduction of bills in the legislative branch to secure either term limits for federal judges or a new, electoral system of appointing them, the push remained within the legislative body until the involvement of the executive branch some eras later under the administration of President Franklin D. Roosevelt. With what has come to be known as FDR’s “court-packing” plan, Roosevelt’s tactical attempt at overcoming the system of checks and balances presented by the judiciary was far more intricate in design than anything that preceded it. Roosevelt, who was determined to usher in the “New Deal” ideology and combat the ravaging effects of the Great Depression, was resolute in his desire to have a cooperative judiciary in place as statute after statute of proposed legislation transitioned the very structure and function of the federal government. Roosevelt’s proposed methodology was as follows: a new law would allow each sitting President of the United States to appoint a single supplementary justice to the Supreme Court for every current justice of the Court that was both on the bench for longer than ten years and refused to resign from the Court within a period of six months after they reached seventy years of age.15 15 William E. Leuchtenburg, Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 85–160 (1996).
Either conveniently or methodically, the proposed statute would allow a sitting president to appoint such justices and grow the size of the Court by up to six additional justices, meaning a potential total of fifteen justices could have assumed the bench simultaneously.16 16 William E. Leuchtenburg, Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 85–160 (1996). This moment in history was to the independence of federal judges what the Bay of Pigs incident under President John F. Kennedy was to the possibility of nuclear war. It is widely regarded as the closest we have come to seeing life tenure in true jeopardy, as the introduction of bills in the legislative body (to limit the terms of judges, to force their retirement by certain ages, or to elect them by way of traditional elections) and the agenda of packing the court through the means of the executive body seemingly burned the candle of life tenure at both ends.17 17 Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 Gonz. L. Rev. 131, 132 (2004), citing David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995, 996 (2000).

a. Life Tenure & State Judiciaries

The debate regarding life tenure for the judiciary is not limited to the realm of the federal government. It is only natural that those very legislators that introduced bills in favor of term limits, forced retirement, and judicial elections in the federal legislature were either representing the will of their constituents, who favored such actions and intentions, or were inducing the legislatures of their home states to strive for similar legislative actions “on the home front,” so to speak. Representatives from Florida were among those who, with high hopes, introduced such legislation in the federal legislature during its 1907 session, calling for federal judges (inclusive of Supreme Court Justices) to be elected to terms of eight years in length.18 18 H.R.J. Res. 226, 59th Cong. (1907); H.R.J. Res. 50, 60th Cong. (1907).
Florida is perhaps itself the greatest substantiation of the notion that such ideologies regarding life tenure have resonated in the realm of the governments of the states that brought them to the floor on the federal stage. In 2017, exactly 110 years after the introduction of the legislation by Floridian representatives in the federal legislature, the representatives of its own State House introduced legislation that would limit the terms of state judges that preside over appellate courts, namely the state’s District Courts of Appeal and the Florida Supreme Court itself. At the time of writing, the ultimate fate of this bill has not been decided upon by Florida’s Senate, but the bill remains the first of its kind introduced by any state in the country as it would forbid Florida Supreme Court Justices and judges on the state’s various District Courts of Appeal from serving in their positions upon the expiration of their terms.19 19 H.R.J. Res. 1 (Fla. 2017).
Examining Massachusetts, it is noted that deference is given to the tradition of life tenure. While life tenure is observed, the Massachusetts Supreme Judicial Court does see a limitation regarding age, as a Justice of the Court cannot serve past the age of seventy.20 20 National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010). A mandatory retirement at the precise age of seventy was among those amendments proposed in the federal legislature during the twentieth century, as well as the implied age of retirement by the proposed “court packing” plan of President Franklin D. Roosevelt.21 21 See Dred Scott v. Sandford, 60 U.S. 393 (1857). In the State of New York, the Justices of the highest state court, the New York Court of Appeals, serve fourteen-year terms upon their appointment and confirmation by the New York State Senate. Upon the end of their terms, they may reapply for appointment and are considered among other candidates in the running to be appointed. The judges of appellate courts in New York see a limitation of five-year terms, upon which they, too, become eligible for reappointment in an identical manner. In Washington State, the Justices of the Supreme Court and judges of its various state courts of appeal are elected by general elections and serve six-year terms, while lower, Superior Court judges serve terms of four years — all of whom are eligible for reelection upon expiration of their terms, should they desire to continue their tenure.22 22 H.R.J. 1 (Fla. 2017).
Those who oppose life tenure are often quick to point out that the general scheme of tenure throughout state courts in our country has long abandoned the absolute style of life tenure that our federal courts maintain. Moreover, opponents imply that federal courts are obsolete in their scheme of tenure because the state courts have all but abandoned such strict interpretation of the language. Of the fifty states, only one state employs an absolute policy of life tenure for its Supreme Court: the Rhode Island Supreme Court.23 23 The Council of State Governments, 37 The Book of the States 309, table 5.1 (2005). The majority view amongst the states, that absolute life tenure is an outdated and flawed scheme for judiciary structure, is a prime case to be made by advocates against life tenure.
It should be noted, however, that this argument for judicial tenure reform in the federal realm is inherently flawed. Simply put, the similarities between the structures and functions of state courts and federal courts end after a prima facie examination of the two. Though these two very different judicial systems (defining the federal as one and the collective state courts as another) adjudicate in the same manner, save for the civil structure of Louisiana, they adjudicate vastly different matters with vastly different consequences for vastly different constituencies. Moreover, those who are quick to point out that almost every state in the country has abandoned absolute life tenure for its higher courts, neglect to discuss that, although states have done away with the strict schematic of life tenure that the federal judiciary still has in place, they have kept in place various systems by which judges may continue to serve in their positions. Whilst some state courts have opted for both reelection requirements and age limitations for judges, other states’ courts have provided for their judges and justices the opportunity to serve by way of reelections, preserving the importance of allowing respected and learned members of the judiciary to be of service in their gained wisdom while simultaneously preserving a system of accountability to be utilized in the event that a judge is no longer deemed capable of the functions of their office.24 24 National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010).
The attempted actions of various state legislatures show that even in the states that have mandatory retirement ages in place, the debate is still far from settled. Multiple states have attempted to amend their mandatory retirement policies by either increasing the retirement age of judges on their respective state courts, or eliminating the requirement completely. Alabama, Arizona, and Massachusetts saw actions in their respective legislatures to increase the mandatory retirement from seventy to seventy-two, seventy-five, and seventy-six years of age, respectively. New Jersey and Virginia saw legislative attempts to increase the retirement age from seventy to seventy-five and seventy-three, respectively. New Hampshire, New York, Washington, and Wyoming have all seen legislative proposals that call for elimination of a mandatory retirement age. Although these various attempts were generally unsuccessful in amending their state’s practices, they exemplify the fact that a dissonance exists in many of the states that have installed a system contrary to the life tenure schematic of the federal judiciary.25 25 National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010). A dissonance that has arisen possibly after witnessing the unintended consequences of removing strict life tenure privileges within their respective judiciaries.
The policies of life tenure within the courts of some states are as distinct and distinguishable from one another as the cultures of the states themselves. The collective commonality found between a vast majority of states and the structure of the federal judiciary, preserved up until now, is that both realms at the very least provide judges with the opportunity to serve on their respective benches for a term of good behavior. While their tenure may require an exerted effort of reelection or reappointment in a particular state, the chance at continuing to serve is still somewhat present. The differentiations in policies are observed within the mechanics of the means by which — and frequency by which — good behavior is measured. Whether their behavior is deemed good by a state governor or state appointing committee, or deemed good by the electorate directly, their opportunity to continue in service on the bench is present, and their continued service, if attained, is legitimized by the very same.

b. The Crisis Judicial Tenure in Poland

Recent events outside of the landscape of the American Constitution provide an even more expansive canvas for the issue of life tenure and the role it plays in judicial independence. At present, the government of Poland, by way of parliament, has passed a bill that seeks to remove all the nation’s supreme court judges by mandatory retirement. The passing of this legislation has led to eruptions in protest, with a majority of Polish citizens urging their president to veto the bill, which would effectively allow the country’s Justice Minister to appoint replacement judges across the board.
The issue of judicial independence is now at the forefront of the Polish crisis. The European Union has stated its position on the matter as one of grave concern as it would effectively remove any independence within the Polish judiciary and place the entire branch of government under the umbrella of the remaining branches.26 26 President Donald Tusk, European Council President, Statement to the Council of the European Union on the situation in Poland (2017). Tasked with appointing all replacements, the Justice Minister would have full authority under their laws to appoint qualified judges, which presents a problem when one considers that the person tasked with appointing these judges is affixed to a political party. To contextualize the crisis in Poland, it would be similar to a situation where the President of the United States appointed seven Justices to the Supreme Court with the assumption that all seven were confirmed in their respective appointments.
This would surely eviscerate the very function of our High Court, as it would all but guarantee that the influence of that current president’s appointments would be witnessed in unanimity time and time again. Although the crisis in Poland seems like a far cry from the consequences that we might see from a departure from life tenure, they may not be too far removed from one another. The ultimate consequence of the legislation in Poland would be an evisceration of the integrity and independence of their judiciary. Similarly, the ultimate consequence of a departure from life tenure in our federal judiciary would be, at worst, the same evisceration and, at best, a grave and observable decline in the judiciary’s active and intended check and balance functions.
Perhaps the most striking intersection of Poland’s recent protests and our own ongoing debate in America came in the form of the United States Department of State taking an official position on the matter. Its official position has been to urge Poland to respect judicial independence and to avoid weakening the rule of law.27 27 U.S. Department of State, Poland: Independence of the Judiciary, Press Release (July 21, 2017). Although the position of the Department of State should not be taken out of context, it does reaffirm the importance of maintaining the rule of law and acting in the best interest of an uninhibited, independent judiciary. Thus, the proposed direction in our own government would be best situated if it fervently and efficiently endeavored to maintain the independence of our own judiciary.

c. Judicial Independence

The Constitutional language granting life tenure exists beyond the rhetoric of good behavior discussed supra, to wit: Article III, Section 1 providing language outlining the circumstances under which a federal judge shall retain their position. Moreover, this language provides consideration not only for the tenure of a judge, but also for their compensation, which it dictates both to be due to the judge and that it not be diminished during their tenure.28 28 U.S. Const. art. III, § 1. The Federalist Papers discussed with fervor the belief that a judiciary not entirely independent and starved of the pressures, burdens, and similar external influences seen in the remaining branches of government would be incapable of performing its most crucial and sensitive function — guarding the rights and privileges granted to the people by the law. Alexander Hamilton’s thoughts with regard to absolute judicial independence went so far as to suggest that the guarantee of judicial compensation was as fundamental to the independence of a judge as was the actual granting of a judge’s tenure for life. Hamilton stated that allowing room for control or influence over a judge’s subsistence would surely “amount to a power over [a judge’s] will.”29 29 Alexander Hamilton, The Federalist No. 78; Alexander Hamilton, The Federalist No. 79.
Where the Constitution provides a foundation for the importance of judicial independence and the publications of the era provide context and analytical guidance, cases before the High Court have since then expounded upon the importance of judicial independence by discussing it in contexts beyond that of life tenure or compensation. Bradley v. Fisher allowed the Court to discuss judicial independence in the context of judicial immunity, stating that judges being free to act upon their own convictions without apprehension of consequences to themselves is “a general principle of the highest importance to the proper administration of justice.”30 30 Bradley v. Fisher, 80 U.S. 335, 347 (1871). Although the context is one regarding the immunity of judges against liability, the message is merely another instance in which the judiciary has communicated the imperativeness of independence to its function and, accordingly, the imperativeness of any underlying variable that is vital to that independence itself.
In the contemporary, the steadfast advocates of life tenure frequently note that the Supreme Court of the United States and its Circuit Courts of Appeal have only recently (in the “grand scheme” of things) begun to serve their vital purposes in the purest sense of the phrase. Put another way, the Courts in the modern era have ruled on the constitutionality of laws and regulations much more frequently than during earlier eras in our country’s history, undoubtedly due to the growing population, the increasing resources for litigation, and the ever-evolving complexities of life in the modern era which give way to increased opportunities for judicial review. While the Courts have served their purpose since their inception, it is without question that now, more than ever before, the judiciary serves as an unwavering guardian of our existence as a nation of laws, regardless of the subjectivity of political viewpoints; the reproductive rights of women31 31 Roe v. Wade, 410 U.S. 113 (1973). and the rights of employers with respect to the same,32 32 Burwell v. Hobby Lobby, 573 U.S. 22 (2014). the rights of individuals to enter into same-sex marriages,33 33 Obergefell v. Hodges, 576 U.S. __ (2015). and the rights of citizens to be secure against warrantless searches and seizures34 34 Riley v. California, 573 U.S. __ (2014). are but few in the long list of landmark decisions that the Courts of the modern era have ruled on.
Another instance of the significance of judicial independence to our institutions — and importance of life tenure to that independence — is the role of the federal courts in keeping executive actions within the due bounds of the Constitution. It is of great ease for those opposed to posit that the federal judiciary usurps the power of the executive if it sets precedent that narrows the authority that the Constitution grants the executive, but it is far more difficult for those opposed to accept the reality that the federal courts operate not to remove power from the executive, but rather to prevent it from infringing upon the rights of the people.
For example, at present, various United States District Courts and Circuit Courts of Appeal have ruled upon the executive actions of the current presidential administration of Donald J. Trump with regard to immigration policies, with the Supreme Court following by granting writ of certiorari as well. Executive Order 13769, signed by President Donald J. Trump and infamously referred to as the “travel ban,” saw actions brought against it in federal courts in nearly fifty different times and on behalf of various parties, many of them states.35 35 Int’l Refugee Assistance Project v. Trump, 883 F. 3d 233, 250 (4th Cir. 2018), as amended (Feb. 28, 2018), petition for cert. filed (U.S. Feb. 23, 2018) (17–1194). The United States Court of Appeals for the Ninth Circuit issued a temporary restraining order on the executive action. The United States District Court for the Eastern District of Virginia ruled in another instance that the executive action violated the Establishment Clause of the Constitution, which would be the first of many federal rulings finding solace in a similar interpretation of the law. A revised version of the order, Executive Order 13780, was met with opposition when both the United States District Court for the District of Hawai’i and the United States District Court for the District of Maryland issued temporary restraining orders against the action and in favor of suing parties based upon similar reasoning.
To prove, empirically, that the course of action taken by federal judges would not have been taken in the absence of strict life tenure is, admittedly, a fruitless endeavor. The holdings and collective rationale of Courts can be studied only in retrospect, and not by anticipatory analysis of any sort. However, it can be argued that one may validate this premise by the virtue of applied logic alone, as follows: first, that federal judges do, at this moment, maintain a schematic of strict life tenure granted to them by the Constitution. Second, that the actions of federal judges in the context of these executive orders were in conflict with the intentions of the executive. Third, that these actions by the judiciary — irrespective of personal political belief and assured by rigorous congressional scrutiny upon the judicial appointments of its officers — resulted from the courts interpreting the Constitution to the best of their respective wisdom and legal ability.
We add to this line of logic the following: first, that the voting constituency of the jurisdictions in which these judges decided the positions of their Courts, could potentially, in this instance and in future instances, be in majority support of the decisions of the executive branch, and, by default, would place a minority of that voting constituency in favor of the judicial actions against and in conflict with the executive agenda. Second, that the decisions of these judges, however justified in their own Courts and by their own judicial interpretations, are opposed by prominent members of not only the legal, political, or academic communities, but various communities in our society as a whole — the same legal, political, or academic communities that these judges would, in many instances, need to gain meaningful position in during their post-judicial tenure.
These circumstances would present complications of the greatest magnitude to the functions of the judiciary. In the instance of the former, assuming either the presence of elected judicial processes or the presence of term-limits, those judges interpreting the law in a manner that ultimately conflicts with the executive orders of President Trump (or any sitting president at any given time in history, for that matter) would, ad minimum, risk upsetting a majority of the voting population that they, themselves, would have to face in the instance of re-election for their current offices, election for higher judicial offices, or election in non-judicial offices of political influence in their post-judicial careers. In the instance of the latter, even assuming term-limitations in absentia an election-oriented judiciary, these judges could potentially face equal difficulties in the realities of a world where personal political opinions may very well inhibit their employability or quality of life upon their departure from the bench.
In summary, the issue is understood to be this: a judge may rule in any manner that they please, without fear of repercussions solely based on the way that they ruled. It is thought that subjecting a judge to further checks than the current remedy of impeachment, such as forced reelection or limited tenure, would at most discourage the judge from abusing their power and at the very least guarantee that the damage of an abusing judge upon the landscape of the law is mitigated by limiting the length of time they preside. In reality, this is a logical fallacy. Such an amendment to the schematic of life tenure would only introduce foreign variables into a once-sterile environment, presenting no benefits in the way of increasing judicial accountability while resulting in a multitude of unintended consequences that inhibit the most sacred functions of our courts.
Since the clear majority of federal judges does not preside over a court of last resort (all but nine of them are in this category), their potential abuse is already in check. Namely, by the very nine of them that do preside over our Court of last resort. Ergo, if erroneous holdings are at the heart of the argument for those opposed to life tenure, these holdings exist only to be overturned. If erroneous holdings of the High Court itself are at the heart of the argument, one might urge those in opposition to present any contemporary instances in which the Court has ruled erroneously. To attempt to argue that such a holding exists without relying on subjective interpretations of law and relying only on procedural or substantive errors that we look to in the body of legal rationale presents a task far more difficult than it is credited for.

d. Judicial Accountability

The crux of the debate surrounding life tenure is as simple in ideology as it is complex in argument. The independence of the federal judiciary, a body that is appointed and not elected, is either viewed as the column that supports the weight of safeguarding our democratic republic, or the branch whose selection sees the least public involvement and exerts the most public power. It is important to note, however, that federal judges are appointed by an office that is itself elected, to then be confirmed by offices that are also themselves elected. Accountability of the federal judiciary to the public is at the heart of the debate for those that oppose life tenure. For opponents, the federal judiciary does not see a degree of accountability high enough to preserve the democratic ideals of governance by the people. Consequently, we examine the procedures afforded with regard to federal judicial accountability.
The Constitution provides that the House of Representatives alone shall maintain the power to impeach.36 36 U.S. Const. art. I, § 2. It further provides that "[t]he Senate shall have the sole power to try all impeachments. ... And no person shall be convicted without the concurrence of two thirds of the members present." Definitively, impeachment in the context of government is the removal of a civil officer from their office, and is not a remedy that provides either for discipline that exceeds the removal from office or removal for offenses that fail to live up to the standard of impeachable offenses.37 37 U.S. Const. art. I, § 3. At present, life tenure provides that federal judges may serve in their offices during good behavior without limit. Good behavior would most certainly be violated by an offense while in office that results in impeachment from office. Misconduct by a judge that does not live up to the standards of an impeachable offense does not have a remedy in impeachment. The definition of misconduct, however, is not equal on both sides of the debate. One might go as far as to say that those opposed to life tenure are opposed solely because of the possibility of "erroneous" decisions by a Court that would effectively "legislate from the bench," or create law outside of the legislative body. It is of the utmost importance to accept that there is a serious possibility that one side of this issue defines "erroneous" decisions as those that are legally incorrect and require rectification, while the other side of this issue defines "erroneous" decisions as those with which they subjectively disagree in terms of ideology and opinion.
The principles of logic would require that we step back and examine the fact that a federal court striking down a law or executive action, for example, does so by interpreting the Constitution and other applicable law and applying their interpretation of the law. It is of no surprise that the decision will either be agreed with or opposed, as the opinions of the public can only fall on either one side of the pitch or the other. This begs the question of what "erroneous," "misconduct," or "poor behavior" ought to mean, in the eyes of the law. If these actions are to be met by simply reaching a decision that half of the public will disagree with, by interpreting the law in a manner that half of the aisle will deviate from, then surely every judge in every court is guilty of erroneous holdings, misconduct, and poor behavior each time they issue a ruling. Put another way, those that oppose life tenure because they find that it inhibits judicial accountability fall victim to the fallacy that, absent life tenure, federal judges would interpret the Constitution and federal laws in a manner completely different than they currently do. Moreover, those that oppose life tenure for any other reason are likely void of the benefit of a meaningful understanding of the function of the federal judiciary, and perhaps even the mechanics of the judiciary’s selection and confirmation processes.
It is a mistaken belief that a court, choosing to deviate from precedent in a particular instance and under a particular set of facts, is automatically engaging in judicial activism or legislating from the bench. As a society, we ask of our federal judiciary to interpret and apply the laws. We supply our President, whom we have democratically elected, with the power to appoint judges to the federal courts, and we supply our elected representatives in Congress with the power to confirm (or deny) the decisions of our Executive.38 38 U.S. Const. art. II, § 2. Those in support of life tenure ask for the judiciary to interpret and apply the laws. Those opposed to life tenure ask of the judiciary something entirely different: to interpret and apply the laws, provided that their interpretations deviate not with the interpretations of previous instances, and present no conflict with the intentions of the legislature, however different the facts and circumstances may be, and to whatever extent the rights of the people may be infringed upon.
Judicial accountability is not and has never been damaged or inhibited by life tenure. To date, there have been over sixty attempts to impeach federal judges. While it can be argued that this number is incredibly low when compared to the number of federal judges that have served and continue to serve on the bench, it can be rebutted by the notion that this low ratio of impeachment attempts is perhaps more a testament to the rigor of judicial confirmation processes than it is a disparagement to the effectiveness of the impeachment process. Many of the attempts were successful in impeachment, while other instances saw judges resign after the House Judiciary Committee stated that an impeachment would surely follow otherwise.39 39 Warren S. Grimes, Hundred-Ton Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 U.C.L.A. L. Rev. 1213, note 21 (1991), citing J. Borkin, The Corrupt Judge 219–58 (1962); see also Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, Cong. Research Serv. 98–186 (Feb. 14, 1995). In the few instances where the Senate tried a judge for impeachment and a member of the federal judiciary remanded the holding back to the Senate, the Supreme Court itself held that the federal courts have no jurisdiction over Senate impeachment hearings and related proceedings, and vacated the judgment to remand.40 40 See, e.g., Nixon v. United States, 506 U.S. 224 (1993).
It should also be noted that all judges are lawyers, while not all lawyers are judges. Put another way, it tends to be forgotten any person holding the office of a federal judge (or a state judge, for that matter) is required to be a lawyer in good standing with their respective bar. With this, comes an initial level of accountability that is often overlooked: a judge is subject to discipline under the rules of conduct governing his or her bar, as is every other lawyer similarly situated. To that end, consider the following logic: all bars govern their member lawyers by rules of professional conduct. All judges are simultaneously lawyers by definition of being members of their respective bars (inclusive of state bars and federal bars) and are subject to said rules. Violation of said rules in certain cases may lead to that member being disbarred. A disbarred member is no longer able to practice law, and is therefore no longer able to hold judicial office. Thus, a federal judge that violates the rules of conduct governing them under their respective bar membership could be cause to be disbarred, which would render them unable to preside on the bench. Moreover, consider the following logic in supplement: most, if not all, actions that warrant impeachment by the House of Representatives simultaneously violate rules governing the respective bar. If the threshold of impeachment is not reached, this does not necessarily mean that the threshold of being disbarred cannot be reached.
Admittedly, the most notable instances of disbarment come from the executive branch. President Bill Clinton, who was famously impeached by the House of Representatives in 1998 after being found guilty of perjury, was also disbarred for his actions. In 2000, Clinton’s license to practice law Arkansas was suspended pending disbarment and ultimately led to him agreeing to an extended term of suspension along with a monetary fine to avoid permanent disbarment. In 2001, the Supreme Court Bar suspended his license to practice pending full disbarment absent a successful appeal by Clinton within forty days. Clinton opted to resign from the Supreme Court Bar and forego a formal contest of the pending disbarment.41 41 John F. Harris, The Survivor: Bill Clinton in the White House (2006). To state that Clinton would have been disbarred had he not been impeached would be speculation, but the statement that the processes by which he was disbarred were in place and did function properly would maintain its verity. The processes in place to remove federal judges exist and function as intended. The circumstances under which a judge may violate good behavior, this is the area which those opposed to life tenure truly find to be lacking. The definition of good behavior to some could mean that one does not violate the law in a criminal manner, violate the oath of their office, or fail to provide the services which they have sworn to provide and are compensated for providing. For others, good behavior could just as easily be violated by interpreting the laws in a manner that is inconsistent with what is popular. This precarious expansion of what violates good behavior jeopardizes the independence of the judiciary.
That a federal judge may serve for life unless impeached is proposed to be problematic, as though the instances in which judges commit unimpeachable offenses exist in such high number that they threaten the function of our democracy. It is conceded that instances have occurred where impeachment has been brought against a federal judge, and has been brought rightfully so, but the judge impeachment failed and the judge continued to serve. On May 19, 1993, Rep. Jim Sensenbrenner introduced H.R. Res.177, impeaching Judge Aguilar, who had been indicted in the late 1980s for racketeering and was convicted in a 1990 retrial. It was referred to the House Judiciary Committee, who left it in limbo while the Judge’s appeals played out. In 1994, the conviction was overturned, and the resolution was left to die. The Judge retired in 1996.42 42 H.R. Res. 177, 103d Cong. (1993). These instances, however, highlight deficiencies not with the remedy of impeachment for federal judges that violate the doctrine of good behavior, but with the processes of impeachment within the legislature. To say that life tenure inhibits the accountability of the federal judiciary by the people is to say that an effortless, swift method of judicial review to be used when the decisions of a court deviate from the majority or popular opinions of the times outweigh the importance of the function of the federal judiciary as the ultimate check and balance of our republic.

e. Judicial Impeachment

As discussed supra, the House of Representatives holds the sole power of impeachment, the process by which a civil officer of the United States will be removed from his or her office. At present, impeachment is the sole check on the judiciary by any branch of government.43 43 U.S. Const. art. II, § 4. Absent the circumstances under which a judge might become disbarred and ineligible to hold his or her office under the conduct rules of a bar, impeachment is the only remedy. As this remedy is the sole check upon the officers of the Supreme Court and its inferior courts, the Court itself emphasized the importance of it remaining solely in the hands of the legislative body, noting that important concerns about the separation of powers would be had if the final review in impeachment matters was placed before the Supreme Court, “the same body that the impeachment process is meant to regulate.”44 44 Nixon v. United States, 506 U.S. 224 (1993); Warren S. Grimes, Hundred-Ton Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 U.C.L.A. L. Rev. 1213, n. 21 (1991), citing J. Borkin, The Corrupt Judge 219–58 (1962); see also Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, Cong. Research Serv. 98–186 (Feb. 14, 1995). The power to impeach federal judges lies with the judiciary committee of the House of Representatives, which has set out the actions and circumstances that warrant impeachment proceedings against an officer of the judiciary.45 45 See Justice William O. Douglas, Final Report by the Special Subcommittee on H. Res. 920 of the Committee on the Judiciary, 91st Cong. 31–39 (1970). What our judicial history shows thus far are instances in which the judiciary has been asked to review impeachment proceedings, to which it has responded with a respectable rejection justified by impropriety and the violation of constitutional principles.46 46 Nixon v. United States, 506 U.S. 224 (1993); John F. Harris, The Survivor: Bill Clinton in the White House (2006). What our legislative history shows us are instances in which Congress has set out to cement the processes by which it carries out its duty to impeach with uniformity against the judiciary, serving as the sole check upon the branch. The Congressional Research Service provides a particularly striking analysis of the mechanics of impeachment with regard to officers of all three governmental branches:

[While some] might find some support for the notion that the “good behavior” clause constitutes an additional ground for impeachment in early twentieth century practice, the “modern view” of Congress appears to be that the phrase “good behavior” simply designates judicial tenure. Under this reasoning, rather than functioning as a ground for impeachment, the “good behavior” phrase simply makes clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. For example, a 1973 discussion of impeachment grounds released by the House Judiciary Committee reviewed the history of the phrase and concluded that the “Constitutional Convention ... quite clearly rejected” a “dual standard” for judges and civil officers. The “treason, bribery, and high Crimes and Misdemeanors” clause thus serves as the sole standard for impeachable conduct for both executive branch officials and federal judges. The next year, the House Judiciary Committee’s Impeachment Inquiry asked whether the “good behavior” clause provides an additional ground for impeachment of judges and concluded that “[i]t does not.” It emphasized that the House’s impeachment of judges was “consistent” with impeachment of “non-judicial officers.” Finally, the House Report on the Impeachment of President Clinton affirmed this reading of the Constitution, stating that impeachable conduct for judges mirrored impeachable conduct for other civil officers in the government.
Nevertheless, even if the “good behavior” clause does not delineate a standard for impeachment and removal for federal judges, as a practical matter, one might argue that the range of impeachable conduct differs between judges and executive branch officials due to the differing nature of each office. For example, one might argue that a federal judge could be impeached for perjury or fraud because of the importance of trustworthiness and impartiality to the judiciary, while the same behavior might not constitute impeachable conduct for an executive branch official. However, given the wide variety of factors at issue — including political calculations, the relative paucity of impeachments of non-judicial officers compared to judges, and the fact that a non-judicial officer has never been convicted by the Senate — is uncertain if conduct meriting impeachment and conviction for a judge would fail to qualify for a non-judicial officer.

The impeachment and acquittal of President Clinton illustrates this difficulty. The House of Representatives impeached President Clinton for (1) providing perjurious and misleading testimony to a federal grand jury and (2) obstruction of justice in regards to a civil rights action against him. The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was “more detrimental when committed by judges and therefore only impeachable when committed by judges.” The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns — act which “betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.” ... In addition, the report continued, both Judge Claiborne and Judge Nixon were impeached and convicted for perjury and false statements in matters distinct from their official duties. Likewise, the report noted the President’s perjurious conduct, though seemingly falling outside of his official duties as President, nonetheless constituted grounds for impeachment.47 47 Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 9–11 (October 29, 2015).

In its analysis, the Congressional Research Service discusses two matters of interest: first, the simultaneous employment of the "good behavior" provision of the Constitution as both a foundation by which to justify impeachment of judges and an instructive provision that secures life tenure for judges. Second, the notion that the House of Representatives, by way of subcommittee reports solidified during impeachment proceedings against a sitting President of the United States, has stated that the conduct for which judges can be impeached mirrors the conduct for which other civil officers can be impeached.48 48 Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 15–16 (October 29, 2015).

III. Conclusion

In the modern era, citizens’ rights and the mechanics of a complex society come to intersections at a steady pace, with the support for the interests of multiple parties being consistently advocated for before the members of congress and through newer outlets such as political "super-pacs." It is of paramount importance to maintain, in the face of this evolved and complex mechanic of democracy that we have before our society today, a judiciary whose collective conscience rests not upon the tide of external influences, but upon its internal judgment and interpretation of the law. The arguments regarding life tenure for the judiciary in the federal system as well as the state system span an attenuated spectrum.
At one end, there exists the desire for a judiciary that answers to the body politic of America directly by way of limitations placed upon the extent to which its members may serve on the bench. At the opposite end, the desire for the judiciary to be as independent from the body politic as possible, for the purpose of executing more freely the duty that has been placed upon it by the Constitution and arguably the intent of the framers themselves. This article has discussed at length the history of these opposed viewpoints, the manifestation of the debate at the state level, and the arguments posited for judicial accountability and judicial independence alike. This article will now posit a varied approach to a solution that aims to secure a greater accountability on the part of the judiciary while maintaining the schematic for life tenure, which, in the view of this article, is of the greatest importance to the independence of the judiciary and, consequently, to the function of the judiciary during the most trying times of crisis within our republic.
The House of Representatives of the United States takes it upon themselves, by way of proper committees, to reform the circumstances under which it impeaches civil officers of the government. The precedent logic of the House itself dictates that the circumstances under which impeachment may be brought against the officers of the judiciary should not differ from the those under which other civil officers may see impeachment, the president and the executive branch being the primary example in the context of the aforementioned research. Therefore, under the simplest notions of modus ponens logical inferences, if the reasoning for impeachment of a judge undergoes the needed reform in the House, the reasoning for impeachment of all civil officers will have undergone the same reform. This applies to the legislative as well as to the judicial and the executive branches. It is posited, now, that greater judicial accountability can be attained while also maintaining life tenure for its own important purposes. By way of reform, the House, with home the sole power of impeachment sits, is implored to reformulate the offenses, be they lesser than criminal or any existing offenses, under which impeachment can be brought.49 49 Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 15–16 (October 29, 2015).
The body politic maintains a great check and balance over the legislature: it is election by which the body politic assigns power to the legislature, and election by which the legislature maintains said power. The power to check the judiciary and the executive arms of government are in the hands of the legislature and, indirectly, in the hands of the body politic. By way of civil discourse between itself and its respective constituents, the House (and the Senate, for that matter) must collectively decide on a more specific set of circumstances under which it brings impeachment and, subsequently, must remain consistent in its efforts to impeach when it sees fit. The High Court has already held that the final review of impeachment sits with the executive, meaning that the Court will not strike down the lawful, proper impeachment of any civil officers by the House, including its own officers in the federal judiciary.50 50 Nixon v. United States, 506 U.S. 224 (1993).
If it is truly a matter of judicial accountability being threatened by life tenure, then the House should reform its impeachment policies. It should entertain the notions discussed by the Congressional Research Committee findings that point to the “good behavior” clause as a means by which impeachment is brought, and isolate key instances that it collectively finds ought to constitute impeachment. It should be careful to apply these changes broadly, so that officers of all branches of our government are held to these newer, higher standards of behavior, so as to secure the justification of acting for the good of the republic and inhibit the views that the legislature has commenced a power-grab of sorts.
Judges who violate the code of behavior, set out by the House, would be held accountable and removed from the bench. That is, of course, if judicial accountability is the core of the matter for those opposed to life tenure. If it is a veiled truth that those opposed to life tenure wish to revoke the ability of a judge to enjoy his or her station for life simply to limit the amount of time that a judge interprets the law in a manner that is unpopular, then those opposed to life tenure for this reason will find no solace in this, or any other solution. Those who oppose life tenure despite its necessity to the function of our federal judiciary, and do so because they find issue with judicial opinions with which they disagree, have little standing to partake in this debate. They seek not to hold the judiciary accountable, but rather to increase the turnover rate in the judiciary with the hopes that judges to follow will interpret the laws in a manner that is more aligned with the views that they, themselves might hold.
Where some seek to increase the accountability of the judiciary and some seek to maintain its independence and function, successful compromise is to be had. To amend the constitutionally guaranteed life tenure of the federal judiciary would inhibit the judiciary’s ability to carry out its function. It would render the judges and justices of the federal system susceptible to the influences that the framers had so ardently warned us about. Although not susceptible at once, they would be at some point. Whether it be repercussions that might affect a judge when he or she transitions careers, runs for office in another branch, or even in the course of their day-to-day interactions post-judicial service, the removal of life tenure would risk these influences finding their way into the judiciary. More than imperative to the rulings that a judge does make from the bench, life tenure is imperative to the rulings that a judge does not make from the bench, namely the rulings that the body politic may have felt justified but that the judge, in his or her interpretation and discretion, ruled upon in the alternative.
As the importance of the courts to the constitutional protections of all American citizens (including entities) grows in our modern era, the judiciary, now more than ever, must function as independently as is reasonably possible. History dictates that when the Supreme Court was offered an opportunity to essentially usurp authority over final review of impeachment, it rejected and held that it would violate the Constitution.51 51 Nixon v. United States, 506 U.S. 224 (1993) The fear that the judiciary will "answer to none," the fear that was at the heart of the Anti-Federalist movement during the era of the framers, has not come to fruition. When given an opportunity to truly answer to none, the judiciary declined to expand its power. Yet, the fear of the Federalists — that in losing its independence the judiciary cannot function as intended — sees the risk of coming to fruition each and every time a judge must rule on the application and interpretation of law, should the security of life tenure be vacated. Judges exist to interpret and apply the law to best of their ability. To draw a line where one must be drawn, often by the purposeful availment of the parties themselves. That they may arrive at conclusions met with disagreement by some is a given. That the buck must stop and a decision be made at some given point is a given.
The mechanics for judicial accountability are present. Federal judges are appointed by a civil officer that answers directly to the body politic, they are confirmed by civil officers that answer directly to the body politic, and they can be removed by civil officers that answer directly to the body politic. Those who wish to hold judges accountable more frequently or for a broader list of violations need not look to the judiciary, but rather to the executive and the legislative bodies. Those who wish to disarm the judiciary of its constitutionally vested means of maintaining independence and carrying out its functions as intended for the fear that its officers — whom have dedicated their lives to the rule of law — may arrive at unpopular interpretations of law and subsequently unpopular holdings for a period of time that is indefinite: take heed that although cutting the chains of a knotted anchor is a swifter method to freeing a ship than the meticulous process of unknotting and salvaging it, the anchorless ship once still in calm waters may become impossible to stop when the tides turn volatile.

Footnotes

1Shaheen Nouri, Esq., is an alumnus of Stetson University College of Law. Mr. Nouri resides in Tampa, Florida, and his primary area of practice is appellate law.
2U.S. Const. art. III, § 1.
3William G. Ross, The Hazards of Proposals to Limit the Tenure of Federal Judges and to Permit Judicial Removal Without Impeachment, 35 Vill. L. Rev. 1063, 1067 (1990).
4Alexander Hamilton, The Federalist No. 78.
5Evan Haynes, The Selection and Tenure of Judges 93 (1944).
6Benjamin Gale, Speech Before the Connecticut Convention Election (Nov. 12, 1787), reprinted in 3 The Documentary History of the Ratification of the Constitution 428 (1976).
7Evan Haynes, The Selection and Tenure of Judges 93 (1944).
8See Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 694–95 (1969).
9Marbury v. Madison, 5 U.S. 137 (1803).
11Alexander Hamilton, The Federalist No. 79.
12Thomas McKean, Speech before the Pennsylvania Convention (Dec. 10, 1787), reprinted in 2 The Documentary History of the Ratification of the Constitution (Merrill Jensen ed., 1976); Evan Haynes, The Selection and Tenure of Judges 540–41 (1944).
13Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 694–95 (1969).
14See Dred Scott v. Sandford, 60 U.S. 393 (1857).
15William E. Leuchtenburg, Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 85–160 (1996).
16William E. Leuchtenburg, Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 85–160 (1996).
17Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 Gonz. L. Rev. 131, 132 (2004), citing David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995, 996 (2000).
18H.R.J. Res. 226, 59th Cong. (1907); H.R.J. Res. 50, 60th Cong. (1907).
19H.R.J. Res. 1 (Fla. 2017).
20National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010).
21See Dred Scott v. Sandford, 60 U.S. 393 (1857).
22H.R.J. 1 (Fla. 2017).
23The Council of State Governments, 37 The Book of the States 309, table 5.1 (2005).
24National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010).
25National Center for State Courts, NCSC Backgrounder: Most States Require Judges to Step Down After 70 (2010).
26President Donald Tusk, European Council President, Statement to the Council of the European Union on the situation in Poland (2017).
27U.S. Department of State, Poland: Independence of the Judiciary, Press Release (July 21, 2017).
28U.S. Const. art. III, § 1.
29Alexander Hamilton, The Federalist No. 78; Alexander Hamilton, The Federalist No. 79.
30Bradley v. Fisher, 80 U.S. 335, 347 (1871).
31Roe v. Wade, 410 U.S. 113 (1973).
32Burwell v. Hobby Lobby, 573 U.S. 22 (2014).
33Obergefell v. Hodges, 576 U.S. __ (2015).
34Riley v. California, 573 U.S. __ (2014).
35Int’l Refugee Assistance Project v. Trump, 883 F. 3d 233, 250 (4th Cir. 2018), as amended (Feb. 28, 2018), petition for cert. filed (U.S. Feb. 23, 2018) (17–1194).
36U.S. Const. art. I, § 2.
37U.S. Const. art. I, § 3.
38U.S. Const. art. II, § 2.
39Warren S. Grimes, Hundred-Ton Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 U.C.L.A. L. Rev. 1213, note 21 (1991), citing J. Borkin, The Corrupt Judge 219–58 (1962); see also Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, Cong. Research Serv. 98–186 (Feb. 14, 1995).
40See, e.g., Nixon v. United States, 506 U.S. 224 (1993).
41John F. Harris, The Survivor: Bill Clinton in the White House (2006).
42H.R. Res. 177, 103d Cong. (1993).
43U.S. Const. art. II, § 4.
44Nixon v. United States, 506 U.S. 224 (1993); Warren S. Grimes, Hundred-Ton Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 U.C.L.A. L. Rev. 1213, n. 21 (1991), citing J. Borkin, The Corrupt Judge 219–58 (1962); see also Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, Cong. Research Serv. 98–186 (Feb. 14, 1995).
45See Justice William O. Douglas, Final Report by the Special Subcommittee on H. Res. 920 of the Committee on the Judiciary, 91st Cong. 31–39 (1970).
46Nixon v. United States, 506 U.S. 224 (1993); John F. Harris, The Survivor: Bill Clinton in the White House (2006).
47Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 9–11 (October 29, 2015).
48Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 15–16 (October 29, 2015).
49Jared P. Cole & Todd Garvey, Impeachment and Removal, Cong. Research Serv., R44260 15–16 (October 29, 2015).
50Nixon v. United States, 506 U.S. 224 (1993).
51Nixon v. United States, 506 U.S. 224 (1993)

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