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June 9, 2017

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 at 12:18 PM | Permalink


There are two major barriers to creative plea bargaining.

The first barrier is bureaucratic -- both legislative barriers and internal regulations in prosecutor offices, public defender systems, and large firms. I will use, as an example, the simple driving while revoked ticket. I don't think that my state or the counties I have practiced in are unique. In my experience, unless a person has a lengthy history of driving while revoked, both the prosecutor and the defendant want the defendant to get his license reinstated. A narrow interpretation of the scope of representation (only the criminal case) limits the ability of the public defender to provide full services to the client in getting their license back. On other cases, the check lists imposed by supervisors of what the attorneys need to do before making a plea deal and who has to approve the plea deal keep the attorneys from cutting through the red tape and finding a solution that benefits everyone.

The second barrier is inertia. There is, in most places, an informal understanding of what the plea offer should be for a routine case -- whether it is first time stealing or a serious assault. It is easy for the prosecutor to make that offer and easy for the defense attorney to tell the client to take it. What is harder is for the attorney -- unless, for retained counsel, the client has the money to pay for the extra time -- to actually consider the client's unique circumstances, investigate rarely used options, and come up with an alternative counter-offer that satisfies the concerns that gave rise to the original offer while better meeting the client's needs. And, in some cases, that alternative may be difficult to sell to the client because it is "tougher" up front but with less risk on the tail-end. After all, in grading the result of the case, a three-year sentence sounds much worse than probation with a ten-year backup, but -- if the client indicates that he can't meet the probation conditions -- accepting the shorter sentence at the beginning might be the best result.

Posted by: tmm | Jun 12, 2017 4:47:55 PM

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