If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.
2012 Utah L. Rev. 51 (2012)