Volume 35

Private Attorney or Public Defender?: Negotiating Plea Deals in an Age of Mass Incarceration

by Nathan Winshall

In an age of mass incarceration, the overwhelming majority of criminal cases end in plea deals. It is thus unsurprising that plea deals are the first decision in the criminal process that the Supreme Court has recognized as requiring the defendants’ ultimate say. Their final decision-making power notwithstanding, defendants are far from the only actors involved in shaping the plea deal: defense counsel and the prosecutor negotiate the deal with one another, a process that commentators and the Supreme Court have likened to “horse trading,” and then a judge must approve the deal. That a disproportionate number of American inmates are Black and Latino people adds a racial context to the dehumanizing nature of the “horse trading” and of mass incarceration generally.

Understandably, much of the scholarship and criticism of plea deals has focused on the role judges and prosecutors play in the process. The criminal legal system tasks prosecutors with convicting people while judges preside over the post-arrest criminal process, where they are responsible for providing a stamp of approval on plea deals and for sentencing when cases go to trial. Understandably, less critical ink has been spilled on the role defense attorneys play in negotiating plea deals, as they are ostensibly supposed to prevent their clients from going to jail, or at least, lessen their sentence. This Note seeks to fill this scholarly gap by asking what role defense attorneys should play in advising their clients on whether they should accept a given plea deal. Specifically, it focuses on the role of public defenders, who represent the majority of criminal defendants in some jurisdictions, and whose client relationships are profoundly impacted by social hierarchies, including race and class. When speaking with clients about plea deals, public defenders should play an active role as counselor, urging their clients to look beyond their immediate, individualized interests, consider broader structural concerns, such as mass incarceration, and err on the side of taking cases to trial.

The first part of the Note lays out and critiques the arguments for a highly deferential approach to public defense. Particularly, Part I focuses on defendants’ autonomy and a textualist reading of Model Rule 1.2 of the Model Rules of Professional Conduct that largely defers decision-making to the client. Part II critiques the textualist reading of Rule 1.2 and details the institutional expertise that public defenders develop. Part III argues that public defenders should play a more robust role in advising their clients regarding plea deals, looking beyond the immediate interests of individual clients to include structural factors. Part IV makes the case that mass incarceration should be one of those factors. It then contemplates the limits of such an approach by teasing out a hypothetical situation in which all public defenders within a jurisdiction refused to accept plea offers in the hopes of disrupting the local court system, arguing that community buy-in is crucial for such a strategy to succeed.


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