Medicaid, plea bargaining, "coercion" and "compulsion"

Sandy Levinson

I am very disturbed by Mitch's argument, for the simple reason that I think it may have a great deal of merit. I continue to belief that the attack on the so-called mandate is frivolous and that it would be truly shocking if the Court invalidated it. To put it mildly, nothing in the oral argument changed my view about the frivolousness of the argument, though it did reinforce my feeling that the intelligence of several members of the Supreme Court may be distinctly overrated. Similarly, when reading the Clement brief and reading the oral argument, I was vexed in the extreme by what seemed to be a posture of basic table-pounding about the coercion/compulsion being visited on the poor helpless states that had no choice but to accept the offer. He presented nothing in the way of an administerable test inasmuch as his argument boiled down to some version of "you recognize unacceptable compulsion when you see it and this is it. You don't have to articulate an administerable standard any more than you did in Bush v. Gore. It's perfectly proper to write a decision good for this legislation only." Ugh!

But the importance of Mitch's analysis is that he offers a concept of coercion that makes the felt psychological pressure to accept near, if not totally, irrelevant, in favor of focusing on the "legal merits" of the offer. And this means that one has to address seriously the possibility that there are problems with the Medicaid funding provisions even though Clement did not adequately spell them out.

So imagine that we're discussing plea bargaining: A) The prosecutor says "if you don't plead guilty, we're going to manufacture evidence of your guilt and find a jailhouse snitch who will testify that you did it." Obviously, this is unconstitutional. Nothing more need be said. B) The prosecutor says, "We have solid evidence that you did X, and in fact the state would be altogether satisfied if you spent the number of years in jail congruent with X, but we're prepared to charge you with X+Y, even though the evidence is admittedly weaker that you did Y, but the advantage is that you, the defendant, now have to take into account the possibility that after trial you will in fact be convicted of X+Y and sentenced to a considerably longer term (possibly death), since, after all, you have a previous record (and therefore probably can't take the stand in your own defense) and we don't have to remind you that you're a member of a racial or ethnic minority likely to face an all white/Anglo jury that, as in Texas, has remarkable discretion with regard to sentencing people they don't like.".

I take it that many--I would hope most--of us find B to be at least problematic and, one hopes, unconstitutional as well, because it is far closer to A, in terms of the bad faith of the prosecutor, than to another possiblity, C: There the prosecutor says "We have solid evidence that you did X and we think you merit Y years in jail for that, but we're willing to cut you a deal: Plead guilty and save us the cost of a trial and we'll agree to tell the judge (who always accepts our pleas) that you should be sentenced to Y-Z (where Z is in effect your reward for pleading out)." Some, though I suspect not most--of us are troubled by even Category C plea bargaining, but I assume that the numbers go up as we move to B and, I would hope, include ewveryone when we get to A. (There's no doubt, as a matter of current doctrine, that C raises no problems; the real shame is that even B probably raises no problems for the current Supreme Court majority when it considers the mechanics of plea bargaining.)

So, as I understand Mitch's argument, he's asking us to consider the possibility that the Medicaid provision is an example of B (most definitely not A), where the US cannot offer a good faith argument that cutting off all funds is predicated on much (if anything) else than a desire to elicit the waiver of the state's right to say no that is similar to the defendant's waiver of his/her right to say no and demand a jury trial. It's the equivalent of saying "that's a nice puppy you've got there; it would be a shame if anything happened to it.")

As everyone who teaches in the area knows, the area of "unconstitutional conditions" rivals only "state action" in its quicksand-like quality. Many leading figures have written on it--Richard Epstein, Kathleen Sullivan, Seth Kreimer, and Mitch Berman, for starters--and I think it's fair to say that none has carried the day. Some, like Cass Sunstein, have suggested we give up on the concept, and I can certainly understand the temptation. But then all you have is one damned case after another, which cannot be brought together into any coherent doctrinal relationship. At that point, I put on my political scientist hat and simply tell the student that the outcome is the result of the particular politics and identity of that day's majority (or, what may be the same thing, the idiosyncratic, often truly inexplicable, musings of the "median" justice who can break the ties between two adamant 4-4 blocs that may in fact possess more coherent theories even as, of course, they are in deep opposition to one another).

From my perspective, the central problem with Mitch's argument, which I find truly elegant, involves its administrability inasmuch as it inevitably requires that one in effect read the decision-maker's collective mind to determine the good faith of the arguments made that, e.g., all elements of the program are sufficiently integrated with one another to make cutting off all funds legitimate. There is certainly no reason to believe that members of the federal judiciary will have the kind of expertise to understand how complex programs "really" work. So perhaps it's better to rely on "political safeguards" to respond to programs--"Repeal Obamacare"--than the moreo or less arbitrary decisionsn of judges trapped in what Justice Breyer, in oral argument, called the "isolation chamber."

In plea bargaining, as Mitch analyzes it, one has to determine whether the state "really" legitimately believes both that the defendant did X+Y and deserves to serve 30 years rather than 10 years. The same problems emerge, of course, with regard to discerning "racial animus" behind a given policy or determining whether a state regulation touching on interstate commerce is motivated by a desire to help local business (illegitimate) or to protect the general health, safety, and welfare of the state's citizenry (perfectly acceptable).
Posted 1:10 PM by Sandy Levinson [link]