ACLU's lawsuit against Maricopa County feels all too familiar

5 minute read

REUTERS/Benoit Tessier

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  • Class action complaint

(Reuters) - The American Civil Liberties Union has filed a federal class-action alleging the Maricopa County Attorney’s Office in Arizona threatens every single person it arrests for drugs or lower-level felonies with “substantially harsher” prosecution in order to coerce them to plead guilty before prosecutors have to turn over evidence.

The lawsuit, filed Wednesday, claims that county prosecutors often issue the unlawful “threat” in writing, at the top of their first formal plea offer, like a sort of disclaimer. It warns explicitly that future offers will get substantially harsher if the defendant rejects the initial deal and opts to go to trial.

It also says that the offer is automatically withdrawn “if the witness' preliminary hearing is set,” according to the complaint. (The main point of a preliminary hearing is an initial assessment of the state’s probable cause for the arrest. Magistrate judges can even dismiss a case completely during the process.)

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The ACLU’s Arizona chapter and national offices are arguing that the policy is unlawful because it punishes people for simply exercising their right to a preliminary hearing under Arizona law and their right to a jury trial under the U.S. Constitution. It also highlights the “vast racial and economic discrepancies in plea bargaining techniques used across the county,” the ACLU said.

Somil Trivedi, a senior ACLU attorney working on the case, told me that Maricopa County’s policy represents the extreme end of a spectrum of coercive yet commonplace practices in prosecutors’ offices, many of which are arguably unlawful. Indeed, the allegations, if true, describe the sort of practice that has become routine despite that they amount to a pervasive pattern of due process violations.

“Coercive forms of prosecution and plea bargaining happen all over the country, but what Maricopa County is doing is plea bargaining on steroids,” Trivedi said.

“They’re basically saying the quiet part out loud,” he added.

Maricopa County’s chief prosecutor Allister Adel declined to answer my questions for this column. Jennifer Liewer, the office communications director, told me they’re “unable to provide comment on pending litigation.”

Levonta Barker is one of the specific arrestees who the complaint alleges was coerced by prosecutors’ standard operating procedures. Barker was arrested while “minding his own business at a 7-Eleven in Phoenix,” the ACLU alleges. Police thought he robbed two people who said their assailant was wearing a bandana -- like Barker was wearing at the time. That led to Barker getting charged with “two counts each of aggravated assault and kidnapping.”

Barker was offered a plea deal of 7-and-a-half years in prison, followed by probation – subject to the “substantially harsher” clause. He ended up waiting in jail for about a month, until his attorney found a booking photo proving he had worn clothing different from what police reports described the perpetrator wearing on the night of his arrest. The prosecutor’s offices dropped the charges, the ACLU said, but not before Barker lost his job, missed his son’s birthday, and spent weeks in a "COVID-infested" jail.

Maricopa prosecutors use the policy in their Early Disposition Courts, which were actually designed to fast-track pre-trial processes for the low-level offenses that account for the bulk of arrests, the complaint says.

Trivedi said prosecutors are “filtering an increasing percent of cases through this system that exists basically in a Constitutional limbo after arrest and prior to arraignment.”

“It’s essentially this very narrow window of time where prosecutors have the ability to charge and convict you, but you don’t have the rights to discovery or meaningful bail review if you’re being detained,” Trivedi said.

The complaint makes an intriguing argument. The ACLU has described the lawsuit as a “first-of-its-kind civil rights lawsuit” challenging coercive plea-bargaining practices. But it’s also well founded: The U.S. Supreme Court ruled in 1968 in United States v. Jackson that if a law has “no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.”

Maricopa County may argue that the purpose of its policy is to facilitate speedy resolutions. But it’s not such a stretch to think that it's nonetheless unlawful. Maricopa's practice as described by the ACLU is similar to procedures in other jurisdictions that used to be routine, until they were challenged or found to be systemic violations of people's Constitutional rights.

For example, there’s the infamous practice in Ferguson, Missouri, which was found in 2015 to be using “its police department in large part as a collection agency for its municipal court,” according to an FBI report. For years, authorities issued warrants and jailed people for missing a single required fine payment, even though the fines were issued for minor municipal violations that "would not on their own result in a penalty of imprisonment," the report said. The practices there involved actors throughout the local justice system.

A 2013 report into civil asset forfeiture in Shelby County, Texas, by the New Yorker also has some striking parallels to the ACLU’s most recent allegations.

There, the ACLU had alleged in a class action that officials were stopping and searching mostly Black and Latino drivers and seizing their cash and property without justification. The district attorney had “improvised” documents known as roadside property waivers, “which threatened criminal charges unless drivers agreed to hand over valuables,” according to the New Yorker article.

A defense attorney who represented victims of the practice in Texas commented that officials “were memorializing” illegal behavior, and were so brazen about it that “they put it in the damn document!” Shelby County ultimately settled that case, and Texas legislators “banned the use of roadside waivers and modestly restricted” civil asset forfeiture, the New Yorker reported.

The ACLU’s lawsuit against Maricopa County is still in the earliest stages, but the complaint certainly calls out a particularly coercive manner of plea-bargaining, which just may be excessive.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com