Hofstra Law Review


Richard Klein


Over the years, a pattern has emerged where judges routinely engage in practices that violate the constitutional rights of the defendants who come before them, and which run counter to the ethical conduct that we have a right to expect and demand from those empowered to engage in critical decisions concerning the liberty of our citizens. The Supreme Court, when it held that plea bargaining between a prosecutor and defense counsel did not violate the defendant's constitutional rights, offered a caveat: "Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant." The Court must realize what is patently clear: in at least some situations, judicial involvement in plea negotiations can constitute mental coercion. The most appropriate way of dealing with that possibility is to adopt a prophylactic rule, a "bright-line" prohibition. Such a ban on the judge negotiating a plea with the defendant exists in the federal courts, the time is long overdue for it to apply to the state courts as well.

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