"Donations" in Plea Bargaining Cases Under Fire

The Belleville News-Democrat in Illinois posted an article this week discussing the growing practice of requiring defendants to pay "donations" to anti-crime funds in return for prosecutors dropping or reducing charges. The article has resulted in significant attention being focused on this issue and a statement being issued from the Illinois State Bar Association. The statement reads: "It is not our place to comment on the legality or ethics of the practice, but it does raise concerns that the public's perception of our justice system may be undermined."

The newspaper article includes the following discussion of the "donation" practice.

Defendants accused of rape, homicide, drug dealing and other serious crimes in five rural southern Illinois counties have paid thousands of dollars into "anti-crime" funds that benefit or are controlled by local prosecutors in return for probation or dismissal of charges.
Professors at some of the nation's top law schools say this practice undermines public trust in courts and gives the appearance that defendants with enough money get preferential treatment and can buy their way out of trouble. They say such payments violate a basic ethical principle: Monetary contributions or payments resulting from plea bargains should not in any way benefit or appear to benefit the offices of the prosecutor, the judge or police involved in the prosecution.
"It is clearly unethical and a violation of the Constitution," said legal ethics expert Monroe H. Freedman, a professor at Hofstra University Law School in Hempstead, N.Y. Like other experts contacted for this story, Freedman cautioned he was not commenting about any specific case.
A Belleville News-Democrat investigation found that payments negotiated by prosecutors and approved by judges ranging from $1,000 to $15,000 resulted in probation or dismissal of felonies in 17 cases in Saline, Pulaski, Franklin, Wayne and Hardin counties.
Defendants made much smaller payments to prosecutors' funds in hundreds of other cases in these same courts. A random check of 50 felony cases showed that probation or a conditional discharge was granted in 48 cases. In two cases, the defendant received prison time. The average payment in those 50 cases was $400.
In Saline County, when charges were dismissed by a judge or dropped by the prosecutor, defendants still were required to pay thousands of dollars into one of these funds, even though there was no finding of guilt and the case no longer existed.
"I believe it is wrong for a plea agreement to include contributions to a fund administered by the prosecutor's office or by any agency that is involved in the prosecution," said ethics expert Steven Lubet, a professor at Northwestern University Law School in Chicago.
The 17 cases involving the $1,000 to $15,000 payments included four defendants with criminal records, including one who served time in state prison. Two of the defendants were freed after agreeing to pay, only to be caught again months later for the same crime.

In response to the article, several of the prosecuting offices utilizing this system of donations stated that the practice would end immediately.

Saline County State's Attorney Mike Henshaw, a former circuit judge, ended his office's connection to the "Saline County State's Attorney's Controlled Substance Fund" two weeks ago after the News-Democrat asked questions about it. The fund, established in 2005 by the previous state's attorney, collected $148,309 through February 2011.
After questions from the News-Democrat, Wayne County State's Attorney David Williams said he might abolish the practice as well. However, on Thursday, he said that while he has not had any involvement with his office's fund since he was elected and will continue not to use it, he will not take action to abolish it.
"But that doesn't mean I condemn it," he said.
Henshaw said he doubts state law allows these types of payments to be part of court-ordered plea bargains. "There will be no more pleas taken on this fund," he said.
The loss of revenue, he said, will probably mean he will have to lay off his office's investigator.
Henshaw said while payments to the fund occurred after he took office, they never were an issue until the News-Democrat's inquiry.
"I just never thought about it," he said.
Former Saline County State's Attorney David Nelson, who created the fund in 2005, said he first consulted state law to determine whether the payments could be tied to plea bargains, but he could not recall the specific statute.
"I remember it was vague," Nelson said.

Read the entire article here.