Plea-Bargaining Away One's First Amendment Rights
bobsheridan at earthlink.net
Mon Nov 28 07:15:37 PST 2005
One of the most routinely and frequently imposed conditions of probation
in California criminal courts, and I suppose in the other states, is
that the defendant waive the right to be free of unreasonable search and
seizure with or w/o probable cause in the day or night of person,
residence, and vehicle. Since Fourth Amendment and any constitutional
protection may be waived, why not FA protections? Civil settlements
often involve confidentiality agreements as well. About the only
unwaivable legal protection is that of the jurisdiction of the court,
and even that has been eroded in California.
Marty Lederman wrote:
> Juliette Kayyem speculates that perhaps the Administration's strategy
> is to threaten Jose Padilla with a long potential prison sentence, in
> order to elicit a plea bargain in which Padilla would plead guilty to
> lesser charges, with one of the conditions of the plea being that he
> would not publicly reveal any details about the conditions of his
> This would be analogous to Hamdi's agreement in September 2004 --
> which was that he be transferred to Saudi Arabia in exchange for
> renouncing his U.S. citizenship, agreeing not to travel to the U.S.
> (i.e., to be banished!), and agreeing not to sue the U.S. for any
> injuries sustained during his detentions.
> Hamdi's deal was a condition of his release from military custody.
> Padilla's deal -- if Kayyem's guess is right -- would be in exchange
> for an agreement not to seek a more severe criminal sentence. In both
> cases, the government would be imposing the speech-suppressive
> condition in order to keep secret the facts about its military
> detentions of U.S. citizens.
> Would such a vow of silence as a condition of a plea-bargain be a
> constitutional condition? If not, who, if anyone (other than
> Padilla), could sue to challenge it? Potential third-party "audience"
> I imagine there's got to be fairly clear precedent out there on this
> question -- doesn't the government often attempt to elicit vows of
> silence in plea-bargaining? -- but for some reason, I'm drawing a blank.
> Thanks in advance.
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