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

AuthorNathan Winshall
PositionJ.D., Georgetown University Law Center (expected 2023); B.S.P.H., Tulane University (2017)
Private Attorney or Public Defender?: Negotiating
Plea Deals in an Age of Mass Incarceration
In an age of mass incarceration,
See Wendy Sawyer & Peter Wagner, Mass Incarceration; The Whole Pie 2020, PRISON POLICY
INITIATIVE (Mar. 24, 2020) []
(“The U.S. locks up more people per capita than any other nation, at the staggering rate of 698 per 100,000
residents” or “2.3 million people” total).
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.
See Clark Neily, Prisons Are Packed because Prosecutors Are Coercing Plea Deals. And, Yes, It’s Totally
Legal., CATO INSTITUTE (Aug. 8, 2019)
are-coercing-plea-deals-yes-its-totally-legal [] (citing statistics showing that 97% of
federal criminal convictions and 94% of state criminal convictions are the result of plea deals); see also John
Gramlich, Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do are Found Guilty, PEW
RESEARCH (Jun. 11, 2019)
go-to-trial-and-most-who-do-are-found-guilty/ [] (citing statistics showing that 90% of
federal criminal convictions are a result of plea deals).
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 tradingand of mass incarceration generally.
See Ashley Nellis, Ph.D, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The
Sentencing Project (Oct. 13, 2021),
and-ethnic-disparity-in-state-prisons/ [] (Black Americans are incarcerated in
state prisons across the country at nearly five times the rate of whites, and Latinx people are 1.3 times as likely
to be incarcerated than non-Latinx whites.); see also NAACP, Criminal Justice Fact Sheet,
* J.D., Georgetown University Law Center (expected 2023); B.S.P.H., Tulane University (2017). © 2022,
Nathan Winshall. I am thankful for Darius Wadia, Jacob Metz-Lerman, and Sarah Lubiner, each of whom
pushed me to think about this topic in new ways. I am also extremely grateful for Kevin Tobia’s notes on organ-
izing, framing, and articulating my thoughts on the issue. Cythia Marie Karnezis provided invaluable editorial
support. As with everything I do, Gail Levine, Daniel Winshall, and Lisa Winshall profoundly shaped my
thinking on this topic. Any errors that remain are entirely my own.
3. Jones v. Barnes, 463 U.S. 745, 751 (1983). The subsequent three decisions the Supreme Court has recog-
nized as belonging entirely to the defendant, and not merely their attorney, are whether to testify at trial,
whether to have a judge or jury trial, and whether to appeal the decision.Steven Zeidman, What Public
Defenders Don’t (Have to) Tell Their Clients, 20 CUNY L. Rev. F. 14, 17 (2016).
4. See, e.g., Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1911–12
(1992); see also Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Scott & Stuntz).
resources/criminal-justice-fact-sheet [] (32% of the US population is
represented by African Americans and Hispanics, compared to 56% of the US incarcerated population being
represented by African Americans and Hispanics.) (last visited Nov. 12, 2021).
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.
See United States Department of Justice, Sentencing,
[] (last visited Apr. 2, 2022). The exceptions to the general rule that judges are
responsible for sentencing following a guilty verdict are cases involving the death penalty, which require jury
sentencing. Id.
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 ma-
jority of criminal defendants in some jurisdictions,
Bureau of Justice Statistics, Defense Counsel in Criminal Cases, DEPT. OF JUSTICE (Nov. 2000) https:// [] (citing statistics that public defenders
represent 66% of federal felony defendants and 80% of State felony defendants); Christopher Zoukis, Indigent
Defense in America: An Affront to Justice, Crim. Legal News (Mar. 16, 2018), https://www.criminallegalnews.
org/news/2018/mar/16/indigent-defense-america-affront-justice/ [] (citing
statistics that 80% of criminal defendants cannot afford a lawyer).
and whose client relation-
ships 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 def-
erential 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 cri-
tiques 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
6. See generally Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 COLUM. L. REV. 1303,
1319 (2018) (recommending a variety of judicial interventions that could limit prosecutorial abuse in plea deal
offers); see also MICHELLE ALEXANDER, THE NEW JIM CROW 11419 (2012) (describing the role that racial
bias plays in prosecutorial discretion).
7. See Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 STANFORD L. & POLY REV. 61, 63
10. See L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, YALE L.
J. 2626, 263637 (2013); Kristin Henning, Race, Paternalism, and the Right to Counsel, 54 AM. CRIM. L. REV.
649, 665 (2017) (focusing on cases involving youth).

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