Though sentencing ranges across this vast United States are very different depending on which jurisdiction you are in, 20! years for a case where there were no injuries is seemingly just the starting point, the initial offer, as you put it. You must, absolutely must, go back and negotiate more before you relegate this kid to the intensely and uniquely horrible experience of trial without a defense theory. This is, dear friend, not only an issue of professional ethics, but an issue of personal morals and, I daresay, effective assistance of counsel.
I know that it’s fashionable these days to indicate willingness to go to trial. To paint our faces with scowls and pound on counsel tables. And lawyers should not be afraid of a trial, at least not of the procedure, difficulty, and public speaking aspects. They should, however, make very, very sure that everyone is aware of what a gamble a trial is, and like all games of chance, the odds heavily favor the house.
Please permit me to show my work.
Plea bargaining is something of a new phenomenon in criminal law. Actually, entering a plea of guilty, especially in felony cases, was heavily disfavored by most courts through most of Anglo-American legal history, with some courts even pushing defendants to reconsider their plea and instead plead not guilty. The reasons for this are really interesting. First: under the early common law, the penalty for felony convictions was death. When a person pleaded guilty to a felony, that was the sentence. In reality, the majority of those death sentences were never carried out (of the 35,000 death sentences in England between 1770 and 1830, only about 7,000 resulted in death) because of the frequency of royal pardons, impressment (forcing inmates into military service, usually on ships), a series of bizarre pleadings (such as “pleading the clergy,” where a convicted person indicated they were capable of reading the Bible and, by so doing, proved that they were a clergy member and should be tried by the church courts rather than the secular courts. Pretty quickly, career criminals started memorizing passages of the Bible so they could claim the clergy exception, and eventually the law changed to allow all these wayward “clergymen” to be branded on the thumb on their first offense and be barred from pleading the clergy on their second offense). See James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6 Yale L.J. 185 (1897).
That said, confessing to a felony was downright suicidal, and there was a lot of concern about the person’s competence to plead if he was unwell enough to essentially agree to be executed. In modern times, courts still have concerns about so-called volunteers who waive their rights to appeal after being sentenced to death in capital cases. See John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939 (2005). If the state is going to take your life, it wants you to put up a fight first.
Trials were also much, much, much shorter back then. Some courts could churn through 20 trials a DAY. Back then, defendants were not entitled to counsel in almost any case other than a treason prosecution, and in fact were frequently prevented from having counsel even if they could have paid for it themselves. Lack of attorneys made things go a lot faster, and so did the lack of evidentiary and procedural rules, which didn’t really start developing in any recognizable, codified way until the mid-19th century, if dear John Wigmore is to be believed.
In fact, the closest thing one can find in the historical records that approaches a plea-bargaining system similar to what we have now occurred in England in the 1580s. For a couple of years, in a circuit court outside of London, an unusual number of people started pleading guilty, sometimes half the trial docket. Historians examining the trial records noticed that some of the charges had been amended—almost exclusively reduced from felony charges to misdemeanor charges—in the cases of those who pleaded guilty. Interestingly, the historians who researched this considered that the apparent plea bargaining had been conceived in desperation because of “[…] a ludicrously inadequate local law enforcement system, negligent and absentee justices, ignorant and absentee jurors, and a high acquittal rate.” Albert W. Alschuler, Plea Bargaining and Its History, 13 L. & Soc’y Rev. 211, 222 (1979). Hmmm … sound familiar?
Yes, the system sucks. But it’s interesting to note that it has, in fact, always sucked, and even when there was not a plea bargain system and defendants were encouraged to have trials, frequent trials were not the solution to an unjust system, and defendants did not really fare better for all the trials they were processed through. Should we work on the system to change this? Yes. Should we use individual clients as pawns in broader policy goals? No.
Though, of course, your darling Allison feels strongly that a trial attorney should not unduly influence a client to take a plea, coerce a plea, or leave a client feeling such a lack of confidence in his counsel’s abilities that he chooses to take a plea instead of contest unjust charges, I am also quite convinced that counsel should obtain for the client the best possible plea bargain offer prior to deciding whether to proceed with trial or not.
That includes, Patty, even if your client thinks he wants to plead not guilty. Right now, your client is basing his decision on limited information. He is basing his decision on not wanting to spend the next 20 years of his young life in prison. The calculation for your client is distinctly different if the offer changes. You have an obligation to try and change that offer.
I daresay that the law, that fickle mistress, agrees with me on this one, my keen colleague. See this excellent article: Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650 (2013). Criminal lawyers everywhere have been on high alert since the Supreme Court handed down Padilla v. Kentucky in 2010, holding that defendants in criminal cases have a constitutional right to be advised about the immigration consequences of their convictions. 559 U.S. 356 (2010). Padilla found SCOTUS emphasizing, albeit in dicta, that plea negotiations are a “critical stage” of trial for Sixth Amendment purposes. Id. at 373.
After Padilla came Missouri v. Frye, which involved the failure of a defense attorney to convey plea bargain offers to the defendant, which resulted in the defendant pleading guilty to a felony offense rather than a misdemeanor offense and being sentenced to three years in prison rather than a 90-day jail term. The state’s argument was essentially that plea negotiations are distinctly separate from Sixth Amendment rights to representation by counsel, largely because negotiations are not “on the record” or official trial proceedings, and no one has the “right” to a plea bargain offer. The court held that even though the state’s argument had some logical basis, “[…] the simple reality [is] that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas. Plea bargains have become so central to today’s criminal justice system that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.” 566 U.S. 134, 135 (2012).
On the same day that the Court handed down Frye, it also handed down Lafler v. Cooper, a case in which a defendant indicated that he would have accepted a favorable plea agreement but for the affirmative misadvice of his trial counsel, who told him that because Lafler’s bullet struck the victim below the waist (even though he had aimed at her head), the state would be incapable of proving Lafler had the intent to kill her. 566 U.S. 156 (2012).The important lesson we learn from Lafler, especially for the trial-warriors among us, is that having a fair trial doesn’t always cure the pretrial mistakes of defense counsel. Id. at 165.
Yikes.
I hear you, dear Patty, still saying that all of those cases are well and good, and that lawyers should advise clients of consequences of conviction, convey offers of the state prior to expiration, and be able to generally competently advise clients about what their defenses at trial might and might not be, but none of that holds that the defense counsel has to actually affirmatively pursue negotiations prior to trial. You still think you don’t have to be a good bargainer. You are right, for now.
In determining whether counsel is effective, courts first look to whether their performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 688 (1984). An easy place to look for these norms is in professional associations’ guidelines, like the American Bar Association’s, for example, which is one of the places the Court looked in Padilla when it determined that “the weight” of most professional organizations already had standards that required defense counsel to competently inform clients of the impact of a conviction on their immigration status. Padilla, 559 U.S. at 366. Similarly, the ABA’s Standards for the Defense Function outline that a defense attorney has a “duty to explore disposition without trial.” See Standards for Def. Function, Standard 4-6.1 (Am. Bar Ass’n 2017). The National Legal Aid and Defender Association has a similar but much more detailed “performance guideline” that requires defense counsel to strategize about possible bargaining tactics, be familiar with what concessions the client is willing to offer, and, importantly, be knowledgeable about local practices that might result in diversions, reductions, or alternative sentencing. Performance Guidelines for Criminal Defense Representation § 6.2 (Nat’l Legal Aid & Def. Ass’n 2006).
Though there might be occasional and unique situations where it would be strategically disadvantageous to pursue a plea negotiation, your Agony Aunt Allison thinks that should certainly be the exception, not the rule, and that if you choose not to try and get your client the best possible deal, you sure better have a good reason, both to tell the friendly post-conviction attorney investigating you for ineffective assistance of counsel and to tell the gods of the underworld when you appear before them to give a reckoning of your days.
Dear Patty, though I know you long to have your name in lights, as so many neglected and beleaguered defense attorneys secretly do, you don’t want it lit up like this. Don’t be the attorney whose case gets appealed up to SCOTUS on the back of this young man’s terrible and probably unnecessary trial sentence. Don’t be the one to let your blinders and personal idea of what ethics are (“he said he’s not guilty, so I assume I have no ability to negotiate”) overcome what the actual standards in this profession require and the best interest of your client. The only way, beloved, to feel any better about the possibility of a client making a bad decision about whether to go to trial is to make sure you have secured for him every possible alternative option and thoroughly explained to him, in a way he truly understands, what those options are so that you can know in your heart, and in your file, that you did everything you could.
Love Always,
Allison