Many years ago, when I was a deputy public defender in Los Angeles, I represented a client charged with sales of crack cocaine as a third strike. This meant he was facing 25 years to life in prison. My client had no defense and did not deny the charge. The prosecutor offered to “strike a strike” and give my client eight years in prison. I thought it was a good deal for a third strike case. My client disagreed and refused to take the eight years because that was too much time “for just one rock.” I spent hours talking with him going over what would happen at trial and the offer. In the end he refused to accept the plea bargain and the jury convicted him and the judge sentenced him to 25 years-to-life in prison (making him eligible for parole in 22 years). Unfortunately he was not the only client I had, or defendant I knew of, who turned down what seemed a good deal and ended up with significantly more time in prison after trial.
A new article about plea bargaining may shed some light on my clients’ decision-making while also questioning some of the standard assumptions in the plea bargaining literature. The article is: Fairness and the Willingness to Accept Plea Bargain Offers by Avishalom Tor, Oren Gazal-Ayal, and Stephen M. Garcia (currently on the SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1398128 and forthcoming in the Journal of Empirical Legal Studies).
One of the findings in this article is that plea bargaining critics might be focusing too much on the “innocence problem” (innocent defendants who plead guilty). The authors found that innocent people do not easily accept plea bargains (something I experienced as a public defender). The bigger problem might be the vast majority of cases when the defendant readily admits guilt to their lawyer but rejects the plea offer due to their perception that it is not fair. Other studies have shown that defendants who reject offers and are convicted at trial receive substantially higher sentences than they would have gotten if they had accepted the plea bargain (as happened to my client in the example above). The challenge for criminal defense lawyers is how to discuss that “unfair offer” when the trial poses even greater risk. One approach that seemed to work for many of my clients was to confront their egocentric and other biases as these often prevented them from understanding that a conviction and high sentence were not only very likely, but the most likely outcome. Understanding client decision making in plea bargaining is crucial, particularly in this era of third strike cases, repeat offender enhancements, mandatory minimum sentences and sentencing guidelines (whether technically mandatory or not), since these influence what seems like a “good” deal from the lawyer’s perspective and an “unfair” deal from the client’s perspective.
Perhaps the problem is that the defense attorney has a dificult time explaining that the deal is a good one because her/his definition of “fair” is different from the defendant’s. Indeed, from the perspective of an attorney, the 8-year deal sounds like a good one. However, from a defendant’s perspective it may sound like the difference between watching his child grow up and not. This is why the problem persists. Even those attorneys who recognize that this is an issue will never be able to convice their client that such a deal is “fair.” After all, the defendant my be right. The offer may in fact not be “fair.” Perhaps a better phrase to use with the client would be “an appropriate sentence given the sentencing scheme” or “the best sentence under the circumstances.” The term “fair” may be just the thing that shuts down the client’s ability to make the best decision–legally speaking of course.