The vast majority of criminal cases in the United States concludes in plea bargaining, in which a defendant may plead guilty to some charges in exchange for concessions from the prosecution. Though broadly accepted as a means of avoiding costly, lengthy trials with uncertain outcomes, plea bargains are also frequently criticized for leading to miscarriages of justice. Some of the flaws of the plea-bargaining process stem from the ability of the prosecution to employ hard bargaining tactics that pressure defendants into accepting unfavorable arrangements. While the final decision to accept or reject a plea bargain lies with the defendant, defense attorneys have a crucial role in the negotiations and in advising their clients on the process. Counteracting prosecutorial advantage to secure an optimal client outcome necessitates the use of tactics. With that in mind, it would be useful to consider the various factors that influence the tactical decision-making of defense attorneys in plea bargaining.
Henderson, K. S., & Levett, L. M. (2019). Plea bargaining: The influence of counsel. In B. H. Bernstein & Monica K. Miller (Eds.), Advances in psychology and law (Vol. 4) (pp. 73-100). Springer.
This chapter examines the role played by the defense attorney in decision-making during the plea-bargaining process. Its authors are fully credentialed professors with prior works on courtroom processes and make extensive use of scientific literature, including numerous empirical studies on the topic. They analyze attorneys’ influence on plea bargaining within its legal context and the contexts provided by leading theoretical perspectives. As a result, they identify multiple legal and extra-legal factors that can affect a defense attorney’s decision to recommend accepting or rejecting plea bargains, as well as their conduct during negotiations. The authors provide a comprehensive overview of the defense attorney’s role at every stage of the process and the considerations likely to influence defense plea bargaining tactics. Unlike Woolley’s article, this chapter examines a wider variety of aspects and theoretical perspectives. In contrast to Wilson, the authors of the chapter assess more factors affecting attorney decision-making and form a more favorable assessment of their role.
Levine, K. L., Wright, R. F., King, N. J., & Miller, M. (2019). Sharkfests and databases: Crowdsourcing plea bargains. Texas A&M Law Review, 6(3), 653-670.
This essay explores the information dimension of plea bargaining to make a case for crowdsourcing plea-bargain negotiation and outcome data. The authors, who are experienced law scholars, contend that this would reduce the prosecutorial advantage by giving defendants and their attorneys a better understanding of their options based on local precedents. They base their conclusions on field observations and interviews regarding the practice of plea bargaining in group settings, as well as a review of existing theoretical literature on the subject. The article provides useful insights into the influence of data asymmetry, social dynamics, and jurisdictional specifics on plea bargaining decisions, including the tactical decision-making of attorneys. Compared to Wilson’s article, the essay shows a more optimistic understanding of the plea-bargain system and the defense attorney’s place in it. The authors believe that addressing the information problem would be enough to strengthen the defendant’s position vis-à-vis the prosecution substantially.
Wilson, M. J. W. (2016). Defense attorney bias and the rush to the plea. University of Kansas Law Review, 65, 271-325.
This article criticizes the plea-bargain system in its current form for giving undue power over the process to defense attorneys, leading to disadvantageous outcomes for their clients. It alleges that defense lawyers’ judgment is critically impaired by professional and psychological pressures, resulting in an overall bias towards accepting plea bargains proposed by the prosecution. The article further asserts that restoring defendant control would lead to fewer, more equitable plea bargains. The author, a Professor of Law and Psychology at the Saint Louis University School of Law, draws on extensive scientific literature and court reports to make her case. In the process, she touches upon common flaws in defense attorneys’ tactical decision-making, such as the low level of input from clients and insufficient time. In contrast to Woolley’s article below, the present article takes a clear stance against the current level of attorney tactical discretion. Unlike the essay of Levine and others, it proposes empowering the defendants rather than attorneys.
Woolley, A. (2016). Hard questions and innocent clients: The normative framework of the three hardest questions, and the plea bargaining problem. Hofstra Law Review, 44(4), 1179-1205.
This article applies Monroe Freedman’s normative ethical framework to the question of preferred defense lawyer conduct in plea bargaining. It is particularly concerned with possible miscarriages of justice, such as when factually innocent defendants plead guilty to avoid the likelihood of greater punishment. The author, an experienced legal scholar, draws on Freedman’s writings, other literature, and specific examples to outline the ethical dilemmas facing defense lawyers in plea bargaining. She examines the moral and practical implications of different tactical decisions taken during plea-bargain negotiations and the pressures that can impair a defense attorney’s judgment leading to suboptimal outcomes. In that regard, this article shares many preoccupations with Wilson’s article. Woolley and Freedman both emphasize the importance of respecting defendants’ autonomy and choices and express concern about the efficacy of unethical prosecutorial tactics. However, Woolley does not seem to share the opinion that giving more power to defendants will necessarily improve outcomes, pointing out the disadvantages of such an approach.
Plea bargaining presents a complex tactical challenge for defense attorneys. Their decisions play a critical role in the outcome of the process, as literature attests that defendants are likely to defer to their expertise. Multiple legal and extra-legal variables form the boundary conditions for tactical decision-making. A major complicating factor lies in data asymmetry, as defense lawyers often lack access to critical information that may significantly influence the plea-bargaining process. Furthermore, they have to overcome significant professional and psychological pressures in favor of accepting the prosecution’s offers when those offers are disadvantageous to their clients. A further complication is posed by the ethical considerations around plea bargains that are likely to result in a miscarriage of justice. As a result of those difficulties, some call into question the power defense attorneys are given over their clients. Nevertheless, while the plea-bargain system persists in its present form, the correct choice of tactics on the part of defense attorneys represents the best hope of ensuring optimal outcomes for most defendants.