In some cases, lawyers are, and should be, permitted to conclude plea bargains to which their clients have not agreed. Because clients bear the consequences of a conviction, ordinarily, clients should choose between a plea and the possibility of acquittal at trial. Further, clients have the right to decide that even though conviction is practically certain, moral or political reasons warrant insistence on a trial. But some clients have the goal of minimizing incarceration, have been offered reasonable pleas, face substantially greater sentences if convicted after trial, have no plausible ground for acquittal--and nevertheless decline to plead guilty. They may do so because they are cognitively unable to make a decision or complete a plea colloquy, or because they are holding out for a miracle. The traditional understanding of lawyer-client decision-making authority would lead to the conclusion that the client has the absolute right to reject a plea, even if it inevitably makes the client worse off, on her own terms, by increasing the imprisonment she is trying to avoid. This Article proposes that the Supreme Court's decision in Florida v. Nixon leads to a different conclusion. In Nixon, a unanimous Court held that defense counsel could tell the jury in an opening statement that a defendant was guilty in hopes of improving the client's position for sentencing. The principle o/Nixon has been expanded in lower courts to cover a range of issues and contexts. If Nixon allows a concession of guilt in the inchoate hope of obtaining a more favorable sentence, it should also allow a concession to obtain a specific agreement. Nixon does not extend to situations where the client actually objects to defense counsel's action. But short of actual client objection, defense counsel should be able to assist a client in achieving her goal of minimizing incarceration or avoiding execution even if that means making concessions on issues that were once thought to require personal action by the client.
TABLE OF CONTENTS INTRODUCTION I. THE QUIET REVOLUTION OF FLORIDA V. NIXON II. NIXON, LAWYER AUTONOMY, AND PLEA BARGAINING A. The Nixon Minimum: Maintaining Credibility for Sentencing B. Implications for Formal and Further Concessions C. Objections 1. Client Autonomy 2. Opening the Door to Bad Lawyering 3. Straw Case CONCLUSION INTRODUCTION
This Article proposes that defense counsel are, and should be, authorized to negotiate and conclude plea bargains to which their clients have not agreed when a client faces catastrophic sentencing consequences by irrationally refusing a reasonable plea. This is a decidedly second-best solution to problems created by our criminal justice system, which in many jurisdictions is characterized by harsh mandatory sentences, overcriminalization and overprosecution, underresourced or otherwise ineffective defense counsel, and use of the criminal justice system to address problems like mental illness that would be better handled by other institutions. Nevertheless, it may be the best second-best solution available.
Overwhelming majorities of criminal defendants whose cases progress to the point of decision elect to plead guilty. (1) The numbers are so high that the question of "why" is interesting and important. (2) Indeed, the numbers are so high that the question of "why does anyone plead not guilty" is equally interesting. Given "the reality that criminal justice today is for the most part a system of pleas, not a system of trials," (3) what motivates a handful of defendants to go to trial, knowing that the result may well be a much harsher sentence? There are, of course, many understandable reasons for failure to reach agreement, even if the prosecution, defense counsel, and the client are informed, rational, and engaged. (4) One unfortunate reason--the focus of this Article--is that some clients who cannot plausibly assert innocence and want to minimize their incarceration nevertheless irrationally decline reasonable plea offers in favor of hopeless trials. (5) Abbe Smith has usefully cataloged techniques that conscientious defense lawyers can use to persuade clients to plead guilty when there is no chance of acquittal at trial. (6) But for a variety of reasons, including youth and mental illness, some clients will not "cut their losses in the face of certain disaster." (7)
Imagine, for example, Donna Davenport, a thirty-two-year-old client in state court facing a counterfeiting charge. Multiple officers arrested the client for possession of forged state government checks at an apartment leased in Ms. Davenport's name. Her fingerprints were found on the checks, and color laser printers and blank check stock were found in open view in the apartment. Forensic examination of a computer found in the apartment revealed an account with the username "Donna" containing images of forged checks which had been passed, other checks in the process of creation, and email and social media accounts in the name "Donna Davenport." The search was based on a warrant supported by an affidavit from an informant who swore that he had recently purchased forged checks from Ms. Davenport at her apartment.
Ms. Davenport has a prior misdemeanor forgery conviction for which she received probation, and a felony forgery conviction for which she was sentenced to ninety days in jail plus probation. The current charge carries a ten-year mandatory minimum sentence, a probable guideline calculation of fourteen years, and a twenty-year maximum. The district attorney offered Ms. Davenport a sentence of six years in exchange for a guilty plea, but the client, aware that criminal cases are sometimes dismissed outright, and that some defendants charged with serious crimes are allowed to plead to minor sentences, insisted that she will accept no more than five years. If the case is tried, Ms. Davenport has decided not to testify, because she recognizes it would not help. She also understands that she would be impeached with prior forgery convictions, and that her sentence might well be increased if the judge concludes she lied about her conduct.
After reviewing the search warrant and police report, evaluating the records of the officers who executed the search, interviewing Ms. Davenport about her background and possible defenses, and researching the provisions and constitutional validity of the substantive offense and of the sentencing regime, defense counsel concluded that the search was valid, the evidence is overwhelming, there are no viable defenses, and, therefore, that a trial will result in a conviction. Defense counsel also made the case to the prosecutor that a sentence of less than six years was appropriate, to no avail. Defense counsel has concluded that the sentence will be at least the mandatory minimum, and the assigned judge tends to follow the guidelines, so the sentence is likely to be fourteen years. But in spite of half a dozen visits to the jail where Ms. Davenport is confined, defense counsel has been unable to persuade her that accepting the plea offer is the right decision. Ms. Davenport has expressed willingness to take probation, pay partial restitution, or accept community service.
On their surface, traditional rules of legal ethics and constitutional doctrine lead to the conclusion that there is no solution to the problem of an irrational client acting against her interests; Ms. Davenport may conclusively reject the six-year offer even though that decision will harm her as surely as summer follows spring. (8) Traditionally, the ethical rules seem to say that clients set goals and lawyers decide strategy and tactics. (9) A lawyer cannot unilaterally conclude that a client would be better off taking a plea of ten years, rather than risking a 30 percent chance of a murder conviction at trial. Similarly, a client cannot insist that a lawyer put on a fifth cumulative impeachment witness, or refuse to stipulate to foundation of an indisputably genuine document. This is understood to mean that clients make the basic choice between trial and plea. (10) After all, as the saying goes, the lawyer is not the one who has to do the time.
In addition, the Court has stated that some specific decisions are within the client's exclusive authority as a matter of constitutional criminal procedure, including "whether to plead guilty, waive a jury, testify on his or her own behalf, or take an appeal.... [W]ith some limitations, a defendant may [also] elect to act as his or her own advocate." (11)
Based on these constitutional and ethical constraints, it would appear that an attorney is required to educate, persuade, and counsel, (12) but that the client enjoys the final decision of whether to reject an advantageous guilty plea offer in favor of a certain conviction that will result in a much more severe penalty.
Traditional principles of allocating lawyer-client authority were established when there were fewer pleas, or at least when the centrality of plea bargaining was not fully appreciated and recognized. (13) Equally important, mandatory sentencing was much less prevalent. (14) Traditional doctrines thus create a paradox. The Supreme Court has held that there must be a knowing and voluntary waiver of important rights as a predicate to pleading guilty. (15) This principle recognizes that a guilty plea is a dangerous path when it means giving up a free shot at acquittal through trial, especially when the sentence after trial may be the same. In Boykin v. Alabama, for example, guilty pleas to robbery charges led to five death sentences; the plea may have been convenient for the court-appointed lawyer, but it had no apparent benefit for Boykin. (16) The knowing and voluntary waiver rule recognizes that a client faces a dilemma when the choice is between a plea bargain and a calculated risk at trial. Such value choices and risk calculations are properly for the client, not for the attorney. (17)