Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
January 11, 1998 98-R-0074
FROM: Sandra Norman-Eady, Senior Attorney
RE: Plea Bargaining in Drug Cases
You wanted to know if other states prohibit prosecutors from plea bargaining in criminal cases against repeat drug-selling offenders. You also wanted to know how the legislature can tighten plea bargaining in cases involving these defendants.
We contacted the National District Attorneys Association, the American Bar Association's Criminal Justice Division, the American Prosecutors Research Institute's National Drug Prosecution Center, and the National Center for Drug Crime Statistics but we were unable to identify any state that statutorily prohibit or place restraints on plea bargaining in cases involving repeat drug selling offenders. Although no state appears to have such a law, some jurisdictions have guidelines by which prosecutors engaging in plea bargaining must adhere. In at least one such jurisdiction, Yavapai County, Arizona, the guidelines prohibit defendants charged with sale or possession with intent to sell controlled substances from being allowed to plead guilty to a lesser offense if the charged one is provable. OLR Report 95-R-0201 contains detailed information on jurisdictions with plea bargaining guidelines and is attached for your information.
Locally, neither the Office of the Chief State's Attorney nor individual state's attorney offices have rules or guidelines regarding plea bargaining in drug cases where the defendant is a repeat offender. The primary reason for the absence of any policy, according to Robert Satti Jr., state's attorney for the Fairfield Judicial District, is that a decision to plea bargain in a particular case depends on the state's evidence (i.e., the state's ability to prove that the defendant committed the act charged).
The legislature, in an effort to address plea bargaining in cases involving repeat drug offenders, could require prosecutors in such cases to state on the record their reason for accepting a plea to an offense other than the one charged. An attempt by the legislature to do place restraints on or prohibit plea bargaining may violate the separation of powers clause contained in Article Second of the state constitution as amended by Article XVIII.
TIGHTENING PLEA BARGAINING IN REPEAT DRUG OFFENDER CASES
In an effort to tighten plea bargaining in drug cases against repeat drug selling offenders, the legislature could require prosecutors to state on the record their reason for negotiating a plea as a way of tightening the practice. Currently, prosecutors have to state on the record their reason for reducing, dismissing, or nolling a charge of driving under the influence of drugs or alcohol (CGS § 14-227a (g)). Generally, courts are required to make a verbatim record of proceedings where defendants enter pleas of guilty or no contest. The record includes an inquiry into the voluntariness of the plea, including any plea agreement, and an inquiry into the factual basis for the plea (§ 717). The problem with requiring prosecutors to state their reason for plea bargaining on the record in every repeat drug offender case is that it might jeopardize a defendant's safety, according to Satti. For example, if the prosecutor states that the defendant cooperated with the police by providing the name of his drug supplier, the drug supplier might cause the defendant to be killed or sustain serious bodily injury.
THE CONSTITUTION AND PLEA BARGAINING LEGISLATION
The separation of powers provision of the state constitution provides, in pertinent part that “The powers of the government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” (Ct. Const., Art. Second, Amendment XVIII). Although the specific issue of the legislature placing restraints on prosecutors engaging in plea negotiations has not been litigated in Connecticut courts, it appears as though such an attempt might violate the separation of powers provision.
In 1973, the legislature created the Division of Criminal Justice, of which prosecutors are a part, within the executive branch to be responsible for the investigation and prosecution of all criminal cases in Connecticut (see CGS § 51-276). Subsequently Article Fourth of the Connecticut Constitution was amended by Article 23 to make the division a part of the executive branch. Contemporaneously with the passage of this constitutional amendment, the legislature specified the duties and powers of the division regarding the investigation and prosecution of criminal matters (CGS § 51-277).
It is well established that the judicial branch has the inherent power to regulate the conduct of an officer of the court (State v. Jones, 180 Conn. 443 (1980)). Like all attorneys, prosecutors serve as officers of the court. Therefore, since the days of the Connecticut colony, they have been subject to judicial control (State v. Keena, 64 Conn. 212 (1894)).
The state Supreme Court in Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995), found that the legislative history of the 1973 statute and the constitutional amendment that followed reflected the intent to separate the executive power to appoint a prosecutor from the judicial power to adjudicate a case and to avoid the appearance of conflicts and favoritism in the appointment of prosecutors. Thus, it appears that the judicial branch, and with respect to some issues, the executive branch, has control over prosecutors' adjudicative powers, including their power to engage in plea negotiations. We are unaware of any state court decision upholding the legislature's power to control a prosecutor's duty to adjudicate criminal cases.
Under the Superior Court Rules, prosecutors can engage in pleas bargaining in any type or classification of criminal case. In fact, the rules encourage prosecutors and defense attorneys to try to reach a plea agreement in all cases (§ 704). Negotiations may take place at any time (§ 687). The negotiations can involve any disposition without trial that is permitted by law (§ 690).
By law, plea bargaining involves parties agreeing that a defendant will plead guilty or no contest on one or more of the following conditions:
1. that the prosecutor will charge the defendant with a particular offense;
2. that the prosecutor will nolle, recommend the dismissal of, or not bring certain other charges against the defendant; or
3. that the sentence or other disposition will not exceed specific terms or that the prosecutor will recommend a specific sentence, not oppose a particular sentence, or make no specific recommendation (§ 692).
Attachment 1: OLR report 95-R-0201