Anticipatory Repudiation of
Cooperative Plea Agreements:
Is it Good Contract Law? Is Contract
Law the Correct Model?
Professor Keith A. Rowley
William S. Boyd School of Law, UNLV
Feb. 25, 2008
Part One
A Brief Review of Relevant
Contract Principles
Unilateral vs. Bilateral Contract
• Unilateral Contract: A contract in which X
makes a promise to which she will be bound
when Y accepts by performance.
• Bilateral Contract: A contract in which X
makes a promise to which she will be bound
when Y accepts by making a promise in
return.
Contractual Duties
A valid bilateral contract between X and Y
obligates X to:
• perform as and when promised; and
• refrain from repudiating prior to the time
his performance is due
Anticipatory Repudiation
Elements:
• a definite and unconditional
• manifestation
• of X’s intent not to perform, or inability to
perform, as promised
• communicated to Y
• before X’s performance is due
Exceptions
As a general rule, X may not anticipatorily
repudiate:
• a unilateral contract obligating only X to
perform in the future, or
• a bilateral contract that has been fully
performed by Y (effectively transforming it
into a unilateral contract)
Y’s Options
Faced with X’s repudiation, Y may suspend
her own performance and:
• do nothing until X’s performance is due
(subject to Y’s duty to mitigate);
• seek assurances from X that he will
perform when and as required;
• cancel the contract; or
• sue X immediately for breach
Risk Analysis
Y’s Options
• do nothing
• seek assurances
• cancel
• sue
Possible Consequences
• allows X to retract
• allows X to bind Y by
giving assurances
• allows X to sue Y for
breach if Y’s acts
were unwarranted
Part Two
Are Plea Agreements
Contracts?
Plea Agreements as Contracts
Courts routinely treat
plea agreements as
enforceable
contracts, obligating
both the defendant
and the state to
perform as promised.
“Bargained For” Consideration
Courts treat the state’s
promise of a reduced
sentence or immunity as
consideration to support
the defendant’s promise
to testify or otherwise
assist the prosecution,
and vice versa.
Remedies for Breach
If the state breaches,
the defendant may
• withdraw his plea;
• insist on the agreed
penalty; or
• ask the judge (or
appellate court) to
modify the agreed
penalty
If the defendant
breaches, the state may
• withdraw the plea
agreement and
• seek a stiffer penalty
than agreed, often based
on more serious
charges (subject to
limitations)
Part Three
Anticipatory Repudiation
of Plea Agreements
Principal Cases
• Ricketts v. Adamson, 483 U.S. 1 (1987)
• U.S. v. Ataya, 864 F.2d 1324 (7th Cir. 1988)
• U.S. v. Hon, 17 F.3d 21 (2d Cir. 1994)
• Hentz v. Hargett, 71 F.3d 1169 (5th Cir.
1996)
 But see U.S. v. Casteneda, 162 F.3d 832
(5th Cir. 1998)
Ricketts v. Adamson (1987)
Adamson was one of three persons tried for the firstdegree murder of journalist Donald Bolles. Shortly
after his trial began, Adamson agreed to plead guilty to
second-degree murder and testify against his codefendants, both of whom were convicted. After the
Arizona SCT reversed, the prosecutor asked Adamson
to testify again. Adamson told the prosecutor that he
thought he had already fulfilled his bargain. Without
asking the TC to rule, the prosecutor rescinded the plea
agreement and charged, tried, and convicted Adamson
of first-degree murder.
U.S. v. Ataya (7th Cir. 1988)
Ataya and Syammach were arrested for counterfeiting.
Prior to trial, Ataya agreed to plead guilty to the least
serious charges in exchange for his testimony against
Syammach, who was convicted. While sentencing was
pending the possibility arose that the government would
have to retry Syammach. Ataya refused, then agreed,
then refused, then agreed, then refused to testify against
Syammach in the retrial. The prosecutor reindicted
Ataya on the previously-dismissed charge, but the TC
granted Ataya’s motion to dismiss the indictment. The
government appealed and the 7th Circuit affirmed.
U.S. v. Hon (2d Cir. 1994)
Hon and Tse were arrested for drug trafficking. Hon
agreed to plead guilty to the lesser of the two charges and
“cooperate fully” with the government, including
testifying at trial. At Tse’s trial, Hon testified outside the
jury’s presence that he was coerced into making the plea
agreement. Hon equivocated whether he would testify
against Tse. After the TJ ordered Hon to testify under
immunity, Hon’s attorney told the government Hon would
testify; however, the prosecutor said that Hon had
breached and that the government would not honor its
promise to recommend a downward departure.
Hentz v. Hargett (5th Cir. 1996)
Hentz agreed to arrange the murder of his girlfriend’s
husband. When he, his girlfriend (Williamson), and the
gunman (Harden) were arrested and indicted for capital
murder, Hentz agreed to plead guilty to reduced charges
and to testify at Harden’s and Williamson’s trials. Hentz
testified against Harden, but Harden was acquitted.
When faced with the prospect of sending his girlfriend to
prison or the death chamber, Hentz told the prosecutor
that he would not testify against Williamson in a manner
consistent with his promised testimony.
Key Questions
• What kind of contract is a plea agreement?
• How definite and unconditional must the
defendant’s words or deeds be?
• What if the defendant acts in good faith
based on his understanding of his
obligations under the agreement?
• When is the defendant’s performance due?
• Who gets to decide whether the defendant
has repudiated?
Are Plea Agreements Bilateral?
• Only bilateral contracts may be anticipatorily
repudiated.
• Alper (NYU ‘97) posits that plea agreements
are unilateral contracts because the state is
bargaining for the defendant’s plea, not the
defendant’s promise to plea.
 Alper’s analysis overlooks the testimonial
component -- the state is also bargaining for
the defendant’s promise to testify.
Manifesting Intent
• Examples of conduct that courts have found
sufficient to constitute a repudiation:
 refusing to testify at retrial, based on a
good faith belief that the defendant had
satisfied his duty to testify (Ricketts and
Ataya)
Manifesting Intent
• Examples of conduct that courts have found
sufficient to constitute a repudiation:
 equivocating whether the defendant would
testify after learning that he had been
“tricked” or coerced into a plea (Hon)
 informing the prosecutor that the defendant
would testify differently than previously
discussed (Hentz)
“Good Faith” Disagreement
• Early SCT anticipatory repudiation cases
(Viglas and Mobley) say “no”
• Subsequent non-SCT cases and many
commentators say good faith is irrelevant
• Ricketts v. Adamson (1987)
 Dissent (Blackmun): no repudiation
 Majority (White): good faith is irrelevant
to the question of breach
Who Shall Judge?
• Most courts rely on
prosecutorial discretion
 Risk of prosecutorial bias
vs. cost of judicial
determination
• 7th Cir.: the defendant is
entitled to a ruling before
the state may void the
agreement (Ataya)
Time Performance is Due
• Has a defendant fully performed after he
has testified, pleaded guilty, been sentenced,
and begun to serve his term?
• Has the state fully performed at that point?

If so, no anticipatory repudiation in retrial
cases like Ricketts
Attempted Retraction
• Suppose the defendant decides to testify as
promised prior to the time he is obligated to
do so.
• At what point does the defendant lose the
right to retract?
• What constitutes a material change in
position by the prosecution?
Working Within the Construct
• “Repudiations”in Ricketts and Ataya do not
appear to be “definite and unconditional”
• If plea agreements are unilateral, they can’t
be anticipatorily repudiated
• In retrial cases, hasn’t the State fully
performed? If so, the defendant can’t
anticipatorily repudiate
• Why not obligate the State to seek adequate
assurances or judicial interpretation?
Part Four
Is Contract Law the
Correct Model?
While plea bargain law is “heavily freighted
with ... contract law analogies, ... The
existence of a constitutional right in the
defendant to be treated with ‘fairness’
throughout the process ... presage[s]
inevitably the question of the extent to which
contract law may be drawn upon to define the
limits of this constitutional right.”
Cooper v. U.S., 594 F.2d 12, 16 (4th Cir. 1979).
Commercial Contracts
vs. Plea Agreements
• Relatively equal (or,
at least, not institutionally unequal)
bargaining power
• Institutionally unequal
bargaining power
• Superior investigative
resources
• Criminal sanctions
• Defendant’s own
counsel is effectively
an agent of the State
Commercial Contracts
vs. Plea Agreements
• “Good faith”
performance and
enforcement
• Adversarial
discovery
• Due Process
• Monetary damages
• State allowed to use
information given
by Defendant
• Penal sanctions
• Duty to mitigate
• ???