Plea Process Research Articles

The Impact of the Defense Attorney on Plea Decision-Making: An Experimental Analysis

Most criminal court cases are resolved through a plea, yet the plea decision-making process remains largely unexplored in comparison to other phases of case processing. With defendants reliant on their defense attorney during the plea process, it stands to reason that the characteristics of the defense attorney would impact plea decision-making. To assess this possibility, we administered an experimental vignette to a national sample, manipulating defense attorney type, race, sex, experience, familiarity with other courtroom workgroup members, and empathy toward the defendant. We found that respondents were more likely to accept a plea offer if the defense attorney was experienced and empathic. When the defense attorney was private, experienced, familiar, or empathic, respondents rated their defense attorney as more qualified, which then influenced their acceptance of the plea offer. Uncertainty of the outcome, consequences of a plea, and reasonableness of the plea offer were the common motivators in decision-making.

Toward a method for evaluating court actor influences on plea negotiations: A preliminary exploration of public defenders.

Plea negotiations remain difficult to study, partly because their informality implicates workgroup-related factors within decision-making. In quantitative analyses, these factors are impossible to measure using the case-level data alone. The current study proposes a combined method using survey data and administrative case data as a means of contextualizing the plea process from the standpoint of workgroup members and quantifying workgroup characteristics that can be used as variables in models predicting actual plea outcomes. A preliminary exploration of this kind is conducted with public defenders. The survey data revealed that public defenders thought pleas were necessary to manage caseloads and resources, but also felt the benefits to defendants outweighed the drawbacks. In a descriptive analysis linking survey- and case-level data, the percent of charge reductions among plea cases varied substantively based on both workgroup relationship characteristics and ideologies of the public defenders. Directions for future research adopting this type of approach are discussed.

COVID-19 exacerbates existing system factors that disadvantage defendants: Findings from a national survey of defense attorneys.

COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys' perceptions of whether and how the plea process has changed during the COVID-19 pandemic. This study was exploratory, and we made no a priori hypotheses. We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

Plea validity in circuit court: judicial colloquies in misdemeanor vs. felony charges

ABSTRACT Since the majority of criminal cases end in a guilty pleas, there is growing research on issues related to the plea process, including ways in which the court determines the validity of guilty pleas. Ideally, plea validity evaluations would be consistent across courts and jurisdictions. However, prior research on felony plea hearings suggests that key elements of plea validity may not always be present, indicating there is variation in how courts assess plea validity. The current study examines potential variations in judicial plea colloquies by systematically observing plea hearings (n = 593) in a suburban circuit court. Information on the length of the hearing and the types of questions asked during the judicial colloquies was compared for the 520 (87.7%) defendants who pled to felony charges versus the 73 (12.3%) defendants who pled down to misdemeanor-only charges. Results show plea hearings for misdemeanor-only defendants were significantly shorter and, as a result, included significantly fewer questions compared to felony defendants. This indicates that misdemeanor-only plea cases may be rushed through the court process and that these defendants may not be provided the same information about the consequences of their pleas as felony defendants, posing a threat to the validity of these pleas.

Crisis and Coercive Pleas

Even in the best of times, trials are rare. In the midst of the current pandemic, trials have vanished altogether in certain parts of the country; in other areas they occur sporadically as courts grapple with how to hold trials safely. This makes sense from a public health perspective, but the lack of trials, along with other challenges posed by the coronavirus crisis, poses a heightened risk that defendants will be coerced into false and unfair pleas. Coercive pleas are part and parcel of the criminal system, but the current crisis provides several avenues for even greater abuse of defendants through the plea process. In Part I of this essay I explore the particular concerns related to plea bargaining during the COVID-19 crisis and address three broad areas: 1.) the particularized fear of a prison or jail sentence during a pandemic, 2.) the difficulty with holding – or complete lack of – jury trials, and 3.) issues with access to counsel and other procedural challenges that defendants will face during and after the crisis. Part II offers some solutions to mitigate the risk of coercive pleas. The essay encourages criminal courts to think about holding jury trials via video, despite the many obvious challenges. The essay also defines several ways in which judges can take a more active role in protecting against coercive pleas during the pandemic. And, as the essay explores, this crisis may also provide opportunities for creative problem solving that can outlast the virus.

Guilty but Mentally Ill, Ineffective Assistance of Counsel, and Habeas Corpus

In Velazquez v. Superintendent Fayette SCI , 937 F.3d 151 (3rd Cir. 2019), the U.S. Court of Appeals for the Third Circuit considered whether a criminal defendant may petition for habeas corpus relief when counsel is ineffective for failing to object to a defective plea process during a plea of

Legal professionals’ perceptions of juvenile engagement in the plea process.

Legal professionals’ perceptions of juvenile engagement in the plea process.

State of the States: A survey of statutory law, regulations and court rules pertaining to guilty pleas across the United States.

A psycholegal research agenda on guilty pleas is in its nascent stage. Multijurisdictional surveys of related law and policy may advance this research agenda by focusing investigators on the specifics of existing policies and motivating cross-jurisdictional comparisons of diverse policies. We thus conducted a systematic, national survey of statutes, regulations and court rules across the United States pertaining to nine aspects of the guilty plea process, including sentencing differentials, collateral consequences and waiver of rights, which have been identified in existing legal and psycholegal research and commentary. Following a discussion of these issues, including legal concerns and existing research findings, we present the results of our systematic survey. We supplement this review with a non-systematic sampling of appellate case law. Broadly, there was notable diversity in whether and how jurisdictions approached these issues. We discuss general and specific implications of our findings for future research, emphasizing the importance of data on actual policies and procedures to the design of studies that may contribute to evidence-based criminal justice policy.

Disclosure in the 21 st Century: A Comparative Analysis of Three Approaches to the Information Economy in the Guilty Plea Process

Disclosure in the 21 st Century: A Comparative Analysis of Three Approaches to the Information Economy in the Guilty Plea Process

Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing. Still, few studies have considered the influence of defendant race and race/sex within the plea process. The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction. The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea. Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

The Role of Courtroom Workgroups in Felony Case Dispositions: An Analysis of Workgroup Familiarity and Similarity

While pleading guilty has become ubiquitous in criminal trial courts, limited research has focused on the plea process and the factors that influence guilty plea convictions. Numerous theoretical accounts of the plea process highlight the importance of the court actors and their interactions. Based on this research, the current study analyzes the impact of courtroom actor familiarity and similarity on the chosen mode of disposition and the time to disposition. The findings demonstrate that similarity among the actors and familiarity between the prosecutor and judge increase the odds of a plea disposition and reduce the days to disposition. However, familiarity of the defense attorney seems to impede on the informal plea process, such that cases are more likely to proceed to trial when the defense attorney is more familiar with the other actors.

Judicial Power to Regulate Plea Bargaining

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.

The problem with problem-solving justice: coercion vs. democratic deliberation

AbstractProblem-solving justice is analysed in terms of democratic theory about the conditions under which courts are justified in applying coercive sanctions. The guilty plea process forces defendants to forego evidentiary proof and accept treatment and surveillance. All problem-solving ‘courts', which actually are corrections agencies, operate this way. This violates the legitimating triadic structure in which judges adjudicate, not medicate. Two popular problem-solving models are therapeutic justice and restorative justice. The therapeutic model is individualistic and emphasises personal responsibility, consistent with neoliberal penality. The restorative model is socially and communally oriented, but in practice it must be legally constrained from applying unwise popular prejudices. Habermas's theory of communicative action and discourse ethics of democratic deliberation presents an alternative to both models. Communicative interaction implies a commitment to factual truth, sincerity, and normativity ...

Plea bargaining and the trial penalty in Canada

This article takes an in-depth look into sentencing and into a concept that seems to be inherent within it, that is, the trial penalty. It seeks to answer the question "Should there be a trial penalty?". In doing so, it begins by analysing the pros and cons of plea bargaining and argues that the weight of the disadvantages of the process, taken together with the need to respect entrenched constitutional rights regarding the presumption of innocence and the right to a fair trial, mean that a trial penalty should not exist. It is then argued that while the intuitive existence of an explicit trial penalty is accepted by many within the system, there is a lack of empirical evidence to prove said existence. The article concludes by offering possible solutions to various problems associated with the plea process, as it is currently practised.

A First Look at the Plea Deal Experiences of Juveniles Tried in Adult Court

While there is a large body of research on the legal capacities of adolescents, this research largely has neglected the plea-deal context. To learn about adolescents’ understanding of the plea process and their appreciation of the short- and long-term consequences of accepting a plea deal, we conducted interviews with 40 juveniles who were offered plea deals in adult criminal court. Participants displayed limited understanding of the plea process, were not fully aware of their legal options and appeared to be overly influenced by the short-term benefits associated with accepting their plea deals. Limited contact with attorneys may have contributed to poor understanding. Although preliminary, our results suggest that these youth might be at increased risk for due-process rights violations. We use these data to point to several open research questions on the plea-deal process for youth charged as adults.

Being Honest About Chance: Mitigating Lafler v. Cooper's Costs

A criminal defendant gives up more than constitutional rights when pleading guilty: he foregoes an opportunity for acquittal. That acquittal may be improbable, factually unjustified, or legally indefensible, but once realized, is forever immune from review. The Supreme Court in Lafler v. Cooper, however, recognized only the defendant’s constitutional concessions. Their remedy for when the plea process goes wrong, then, was simple: restore the procedural rights the Defendant had previously waived. But how to account for the acquittal chance the Defendant already redeemed? By not recognizing the amount of chance inherent in a jury trial, the Court may have changed plea offers from a means to resolve litigation to a handy backup when that litigation goes wrong.

Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

Padilla v. Kentucky was a watershed in the U.S. Supreme Court’s turn to regulating plea bargaining. For decades, the Court had focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only halfway. Not until Padilla last year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related collateral civil consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’s common-law incrementalism, and the rise of the two realistic exprosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law to regulate at least the process if not the substance of plea bargaining.

Coercion to Plead Guilty and the Role of the Prosecutor in the People's Republic of China: An Empirical Account

The guilty plea process in China is inherently coercive and fraught with oppression and manipulation. Drawing upon my empirical research, this article examines how the guilty plea procedure has been facilitated in the socio-political context of China and the role of the prosecutor within that. Driven by crime-control values and the allied relationship with the police, the prosecutor strives officiously to pursue the conviction of the accused, rather than being an impartial supervisor of the investigation. In the absence of legal advisers or any effective safeguards to protect the suspect during the vulnerable and crucial process of prosecutorial interrogation, overbearing tactics were used and statements were falsified, by the prosecutor, to obtain the guilty plea that secures conviction. Lacking any voluntary elements in the alternative procedural arrangement, the Chinese guilty plea procedure embodies the innermost feature within the Chinese criminal justice system – the urgency to punish.

Voluntary, knowing, and intelligent pleas: Understanding the plea inquiry.

When defendants plead guilty, they are asked a series of questions (the plea inquiry) in open court to ascertain whether pleas are made knowingly, intelligently, and voluntarily. There is a wealth of research on adjudicative competence, but little to none on the plea inquiry. Whereas competence is relevant to whether one has the ability to make knowing, intelligent, and voluntary decisions, the plea inquiry is relevant to whether one actually made such a decision. In the present study, 99 adult defendants who just pled guilty were interviewed and tested about aspects of the plea process. We found that whereas almost all defendants had little or no adjudicative competence deficits and claimed to have made a knowing plea decision, plea comprehension was generally poor. Two thirds of our sample was correct on less than 60% of questions. KW: Juvenile justice; Juvenile delinquency; Language: en

A Tilted Playing Field? The Release-Dismissal Asymmetry and Interplay Plea Bargaining

Though Judge Learned Hand famously wrote in 1923 that “[u]nder our criminal procedure the accused has every advantage,” more recent scholarship has persuasively argued that the playing field in a criminal prosecution is tilted against, rather than for, the defendant. In federal criminal prosecutions where there is, beyond the immediate criminal liability risk, a future threat of the government also bringing civil claims against the same defendant, the defendant faces increased uncertainty and vulnerability. This vulnerability is made worse by an asymmetry in options available to the parties in a criminal prosecution, an asymmetry that has been hesitantly but repeatedly ratified in the case law and by prosecutors themselves. In particular, while the defendant can and may be compelled to give up any of his future meritorious civil claims arising out of the prosecution and thus assure the government the finality it might seek, federal prosecutors often cannot assure the defendant that the government will not pursue future civil claims against the defendant. This limit on the prosecutor’s power to bind the government from bringing future civil charges against the defendant, and its effect on the plea process in criminal cases, are both illustrated vividly in the tax interplay and immigration interplay contexts. The ultimate effect of this power imbalance within the contractual model of plea bargaining is to increase the defendant’s vulnerability during the plea process, to strengthen the government’s already substantial leverage, and to create a harsh trap for the unwary and unsophisticated defendant who erroneously thinks he has bargained for finality.