Reject the Offer: An Asymmetric Impact of Defense Attorneys

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As I have noted quite regularly, trials are currently disappearing. The vast majority of cases are now decided by defendants pleading guilty, typically in exchange for (sometimes extreme) sentencing concessions from the prosecution.

"A system of pleas"

Ideally, defendants would be advised by a defense attorney prior to accepting a plea offer. Various landmark Supreme Court decisions have recognized criminal defendants’ right to competent counsel (e.g., Gideon v. Wainwright, 1963; Strickland v. Washington, 1984). And, this right has been explicitly extended to plea negotiations (Hill v. Lockhart, 1985; Lafler v. Cooper, 2012) with the Court acknowledging that “… the reality that criminal justice today is for the most part a system of pleas, not a system of trials” (p. 11).

Though, notably, while defendants have a right to competent counsel when considering a plea offer, this right (along with many others) could be easily waived as part of negotiations. In other words, a prosecutor could approach a defendant with a plea offer directly (before they have been assigned counsel), and require that they waive their right to counsel as a condition of accepting the plea offer.

Many defendants mistrust defense attorneys

Defendants who do have the opportunity to consult with defense attorneys prior to accepting plea offers report mixed approval ratings. Many disadvantaged defendants (who are forced to rely on public defenders) mistrust their court-appointed lawyers from the get-go, believing that they endorse a “meet ‘em and plead ‘em” mentality.

These beliefs are bolstered by numerous reports indicating that defense attorneys nationwide are overburdened and understaffed. With caseloads as high as 80 to 100 per week, public defenders are often forced to close cases as quickly as possible. Thus, the vast majority of criminal defendants (who must rely on court-appointed public attorneys) mistrust their attorneys believing that they will devote little time to their case. Overworked public defenders are more likely to adjudicate cases via speedy plea negotiations (out of necessity), which then further feeds defendants’ beliefs that they just want them to plead.

Factors that affect a defense attorney's influence

Consistent with these trends, my coauthors and I found that recommendations from a defense attorney had an asymmetric impact on participant-defendants’ plea decisions. Specifically, mock defendants were more receptive to advice from their attorney when he recommended that they reject the plea offer. In other words, the effect an attorney has on a defendant depends not just on the characteristics of the attorney (e.g., expertise, likability), but on the content of the attorney’s advice.

This finding has important implications. Defense attorneys should be aware that their advice will not be universally well-received. Defendants might be more receptive to advice indicating that their attorney is willing to fight for them, presumably because such advice is not in the attorney’s best interest (as they will then be required to do more work).

Advice to defense attorneys

As such, defense attorneys must be cautious when they genuinely believe that accepting a plea offer is in their client’s best interest (which can often be the case). In those scenarios, our research indicates that attorneys must be particularly attentive to how they situate their recommendations, providing clear justification as to why a guilty plea is in the defendant’s best interest. If they do not, defendants might be more likely to dismiss their advice, believing that they just want to dispose of their case as quickly as possible. In a system of pleas, defense attorneys might have to work harder to justify recommendations that feed the system further.