CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.
Powell, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, IV, and V, in which Rehnquist, C. J., and White, O'connor, and Scalia, JJ., joined, and an opinion with respect to Part III-B, in which Rehnquist, C. J., and White and Scalia, JJ., joined. O'connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 399. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 403.
JUSTICE POWELL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, IV, and V, and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
The question in this case is whether a court properly may enforce an agreement in which a criminal defendant releases his right to file an action under 42 U. S. C. § 1983 in return for a prosecutor's dismissal of pending criminal charges.
In 1983, a grand jury in Rockingham County, New Hampshire, indicted David Champy for aggravated felonious sexual assault. Respondent Bernard Rumery, a friend of Champy's, read about the charges in a local newspaper. Seeking information about the charges, he telephoned Mary Deary, who was acquainted with both Rumery and Champy. Coincidentally, Deary had been the victim of the assault in question and was expected to be the principal witness against Champy. The record does not reveal directly the date or substance of this conversation between Rumery and Deary, but Deary apparently was disturbed by the call. On March 12, according to police records, she called David Barrett, the Chief of Police for the town of Newton. She told him that Rumery was trying to force her to drop the charges against Champy. Rumery talked to Deary again on May 11. The substance of this conversation also is disputed. Rumery claims that Deary called him and that she raised the subject of Champy's difficulties. According to the police records, however, Deary told Chief Barrett that Rumery had threatened that, if Deary went forward on the Champy case, she would "end up like" two women who recently had been
murdered in Lowell, Massachusetts. App. 49. Barrett arrested Rumery and accused him of tampering with a witness in violation of N. H. Rev. Stat. Ann. § 641:5(I)(b) (1986), a Class B felony.
Rumery promptly retained Stephen Woods, an experienced criminal defense attorney.*fn1 Woods contacted Brian Graf, the Deputy County Attorney for Rockingham County. He warned Graf that he "had better [dismiss] these charges, because we're going to win them and after that we're going to sue." App. 11. After further discussions, Graf and Woods reached an agreement, under which Graf would dismiss the charges against Rumery if Rumery would agree not to sue the town, its officials, or Deary for any harm caused by the arrest. All parties agreed that one factor in Graf's decision not to prosecute Rumery was Graf's desire to protect Deary from the trauma she would suffer if she were forced to testify. As the prosecutor explained in the District Court:
"I had been advised by Chief Barrett that Mary Deary did not want to testify against Mr. Rumery. The witness tampering charge would have required Mary Deary to testify. . . .
"I think that was a particularly sensitive type of case where you are dealing with a victim of an alleged aggravated felonious sexual assault." Id., at 52 (deposition of Brian Graf).
See also App. to Pet. for Cert. B-2 (District Court's findings of fact); App. 20 (deposition of defense counsel Woods).
Woods drafted an agreement in which Rumery agreed to release any claims he might have against the town, its officials, or Deary if Graf agreed to dismiss the criminal charges (the release-dismissal agreement). After Graf approved the form of the agreement, Woods presented it to Rumery. Although Rumery's recollection of the events was quite different, the District Court found that Woods discussed the
agreement with Rumery in his office for about an hour and explained to Rumery that he would forgo all civil actions if he signed the agreement. Three days later, on June 6, 1983, Rumery returned to Woods' office and signed the agreement. The criminal charges were dropped.
Ten months later, on April 13, 1984, Rumery filed an action under § 1983 in the Federal District Court for the District of New Hampshire. He alleged that the town and its officers had violated his constitutional rights by arresting him, defaming him, and imprisoning him falsely. The defendants filed a motion to dismiss, relying on the release-dismissal agreement as an affirmative defense. Rumery argued that the agreement was unenforceable because it violated public policy. The court rejected Rumery's argument and concluded that a "release of claims under section 1983 is valid . . . if it results from a decision that is voluntary, deliberate and informed." App. to Pet. for Cert. B-6. The court found that Rumery
"is a knowledgeable, industrious individual with vast experience in the business world. . . . [He] intelligently and carefully, after weighing all the factors, concluded that it would be in his best interest and welfare to sign the covenant. He was also represented by a very competent attorney with more than ordinary expertise in the sometimes complex area of criminal law." Id., at B-4.
The court then dismissed Rumery's suit.
On appeal, the Court of Appeals for the First Circuit reversed. It adopted a per se rule invalidating release-dismissal agreements. The court stated:
"It is difficult to envision how release agreements, negotiated in exchange for a decision not to prosecute, serve the public interest. Enforcement of such covenants would tempt prosecutors to trump up charges in reaction to a defendant's civil rights claim, suppress evidence of police misconduct, and leave unremedied deprivations of constitutional rights." 778 F.2d 66, 69 (1985).
Because the case raises a question important to the administration of criminal justice, we granted the town's petition for a writ of certiorari. 475 U.S. 1118 (1986). We reverse.
We begin by noting the source of the law that governs this case. The agreement purported to waive a right to sue conferred by a federal statute. The question whether the policies underlying that statute may in some circumstances render that waiver unenforceable is a question of federal law. We resolve this question by reference to traditional common-law principles, as we have resolved other questions about the principles governing § 1983 actions. E. g., Pulliam v. Allen, 466 U.S. 522, 539-540 (1984). The relevant principle is well established: a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.*fn2
The Court of Appeals concluded that the public interests related to release-dismissal agreements justified a per se rule of invalidity. We think the court overstated the perceived problems and also failed to credit the significant public interests that such agreements can further. Most importantly, the Court of Appeals did not consider the wide variety of factual situations that can result in release-dismissal agreements. Thus, although we agree that in some cases these agreements may infringe important interests of the criminal defendant and of society as a whole, we do not believe that the mere possibility of harm to these interests calls for a per se rule.
Rumery's first objection to release-dismissal agreements is that they are inherently coercive. He argues that it is unfair to present a criminal defendant with a choice between facing criminal charges and waiving his right to sue under § 1983. We agree that some release-dismissal agreements may not be the product of an informed and voluntary decision. The risk, publicity, and expense of a criminal trial may intimidate a defendant, even if he believes his defense is meritorious. But this possibility does not justify invalidating all such agreements. In other contexts criminal defendants are required to make difficult choices that effectively waive constitutional rights. For example, it is well settled that plea bargaining does not violate the Constitution even though a guilty plea waives important constitutional rights. See Brady v. United States, 397 U.S. 742, 752-753 (1970); Santobello v. New York, 404 U.S. 257, 264 (1971) (Douglas, J., concurring).*fn3 We see no reason to believe that release-dismissal agreements pose a more coercive choice than other situations we have accepted. E. g., Corbitt v. New Jersey, 439 U.S. 212 (1978) (upholding a statute that imposed higher sentences on defendants who went to trial than on those who entered guilty pleas). As Justice Harlan explained:
"The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow.
vindicate civil rights may further significant public interests. But it is important to remember that Rumery had no public duty to institute a § 1983 action merely to further the public's interest in revealing police misconduct. Congress has confined the decision to bring such actions to the injured individuals, not to the public at large. Thus, we hesitate to elevate more diffused public interests above Rumery's considered decision that he would benefit personally from the agreement.
We also believe the Court of Appeals misapprehended the range of public interests arguably affected by a release-dismissal agreement. The availability of such agreements may threaten important public interests. They may tempt prosecutors to bring frivolous charges, or to dismiss meritorious charges, to protect the interests of other officials.*fn4 But a per se rule of invalidity fails to credit other relevant public interests and improperly assumes prosecutorial misconduct.*fn5
The vindication of constitutional rights and the exposure of official misconduct are not the only concerns implicated by § 1983 suits. No one suggests that all such suits are meritorious. Many are marginal and some are frivolous. Yet even when the risk of ultimate liability is negligible, the burden of defending such lawsuits is substantial. Counsel may be retained by the official, as well as the governmental entity. Preparation for trial, and the trial itself, will require the time and attention of the defendant officials, to the detriment of
their public duties. In some cases litigation will extend over a period of years. This diversion of officials from their normal duties and the inevitable expense of defending even unjust claims is distinctly not in the public interest. To the extent release-dismissal agreements protect public officials from the burdens of defending such unjust claims, they further this important public interest.
A per se rule invalidating release-dismissal agreements also assumes that prosecutors will seize the opportunity for wrongdoing. In recent years the Court has considered a number of claims that prosecutors have acted improperly. E. g., Wayte v. United States, 470 U.S. 598 (1985); United States v. Goodwin, 457 U.S. 368 (1982); Bordenkircher v. Hayes, 434 U.S. 357 (1978). Our decisions in those cases uniformly have recognized that courts normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as government enforcement priorities. See Wayte v. United States, 470 U.S., at 607. Finally, they also must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge.*fn6 Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to examine the decision whether to prosecute." Id., at 607-608. See United States v. Goodwin, supra, at 373.
Against this background of discretion, the mere opportunity to act improperly does not compel an assumption that all -- or even a significant number of -- release-dismissal agreements stem from prosecutors abandoning "the independence of judgment required by [their] public trust," Imbler v. Pachtman, 424 U.S. 409, 423 (1976).*fn7 Rather, tradition and experience justify our belief that the great majority of prosecutors will be faithful to their duty. Indeed, the ...