« Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach | Main | Furman at 50: DPIC provides a census of nearly 10,000 death sentences »

July 2, 2022

"Crushing the Soul of Federal Public Defenders: The Plea Bargaining Machine’s Operation and What to Do About It"

The title of this post is the title of this notable new article recently posted to SSRN and authored by Walter Gonçalves.  Here is its abstract:

Existing scholarship on the vanishing federal trial does not explain how assistant federal public defenders (AFPDs) have been affected by the plea-bargaining machine.  Without an understanding of the repercussions to line attorneys, heads of federal public defender offices (FPDOs) cannot take proactive measures.  The result is low morale among staff, difficulty training litigation skills, and lower quality representation.  This state of affairs exacerbates non-trial resolutions as defenders know only how to push pleas.

FPDOs must train AFPDs to better screen cases for trial and improve courtroom litigation.  They must also focus on how the plea-bargaining machine has affected racial minorities as seen in charging and sentencing disparities.  The historical oppression of African Americans, Latinxs, and American Indians made it easier to justify laws that ignited plea-bargaining hegemony: sentencing guidelines, mandatory minimums, and fast-track programs.

David Patton, Executive Director for the Federal Defenders of New York, authored an influential essay published in the Yale Law Journal, “Federal Public Defense in an Age of Inquisition.”  He compared federal practice in 2012, when he wrote it, to the time of Gideon v Wainwright.  Patton concludes that today’s criminal defendant is more likely to be of color, in custody, face more prison time, and less likely to go to trial.  While relevant a decade later, the analysis does not develop problems of race, nor realistic improvements.

The better theoretical lens considers race and supplies solutions through training.  This Article shows how sentencing guidelines, mandatory minimums, and fast-track programs operate in AFPD work, highlights problems for defendants of color, and proposes strategies FPDOs can apply to blunt the impact of the decreasing trial rate.

July 2, 2022 at 06:07 PM | Permalink


This is a useful piece, and I don't want to seem ungrateful, but it also illustrates the futility of trying to make a system safe one component at a time, particularly beginning with THIS component. The AFD decisions that are looked at critically here are efforts at "sense-making" in an unsafe system. Training will help but it won't change the realities the AFDs confront. What we have here is a colonialist system of racial and class subjugation. Yes the defenders might be able to bend the curve, but not much on their own.

Defense lawyer.

Posted by: James Doyle | Jul 2, 2022 6:34:05 PM

How to know immediately that a post is BS:

When it and the comments use words and phrases such as, “Latinx,” “plea bargaining machine,”, “historical oppression,” and “colonialist system of racial and class subjugation.”

What legal academia doesn’t understand is that America’s distrust of the CJS is not the result of the thuggish police, heartless DA’s, etc. It’s stupid articles like this pushed by the defense bar and the same legal academia.

Posted by: TarlsQtr | Jul 2, 2022 11:23:45 PM

TarlsQtr --

As you point out, the main takeaway from this article is how oblivious anti-American defense lawyers have become to the unhinged extent of their race huckstering.

Posted by: Bill Otis | Jul 3, 2022 9:18:39 AM

TarlsQtr --

On the other hand, you do have do be somewhat sympathetic to defense counsels' plight. If I had to deal with criminals day in and day out for years, people who find everyone else to blame for their problems but never themselves, and who sooner or later are going to blame me too by filing a habeas petition alleging that I was drunk every day of their trial, I too would be depressed.

Posted by: Bill Otis | Jul 3, 2022 10:34:09 PM

Can you imagine how many more "people of color" would be in prison if we actually took crime seriously? Inner city murder, rape, robbery, all those tend to be committed by the people who are there, against other people who are there.

And reading various posts by the good Professor over the years, the clearance rate for those offenses is atrocious.

Posted by: Soronel Haetir | Jul 4, 2022 12:00:30 PM

I am waiting -- and expect to continue to wait -- for the equivalent article on the soul crushing nature of the plea bargain machinery (and the defense tactics designed primarily to wear out the prosecution to get a better bargain) on prosecutors.

Posted by: tmm | Jul 5, 2022 4:12:52 PM

tmm --

Yes, you'll be waiting a long time.

Some time ago, my law alma mater, Stanford, put on a panel discussion, "Can A Good Person Be A Prosecutor?" I wrote them asking when they'll be putting on a panel about whether a good person could be a defense lawyer. I'm still waiting to hear back.

Posted by: Bill Otis | Jul 5, 2022 5:59:07 PM

If you write such an article, tmm, I will be eager to blog about it.

Posted by: Doug B. | Jul 5, 2022 10:18:00 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB