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

• Author: Nathan Winshall
• Position: J.D., Georgetown University Law Center (expected 2023); B.S.P.H., Tulane University (2017)
• Pages: 1213-1230

Private Attorney or Public Defender?: Negotiating

Plea Deals in an Age of Mass Incarceration

NATHAN WINSHALL*

INTRODUCTION

In an age of mass incarceration,

1

See Wendy Sawyer & Peter Wagner, Mass Incarceration; The Whole Pie 2020, PRISON POLICY

INITIATIVE (Mar. 24, 2020) https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/25DS-AC7T]

(“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.

2

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.

3

See Clark Neily, Prisons Are Packed because Prosecutors Are Coercing Plea Deals. And, Yes, It’s Totally

Legal., CATO INSTITUTE (Aug. 8, 2019) https://www.cato.org/commentary/prisons-are-packed-because-prosecutors-

are-coercing-plea-deals-yes-its-totally-legal [https://perma.cc/GSV5-Y4PG] (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) https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-

go-to-trial-and-most-who-do-are-found-guilty/ [https://perma.cc/72EH-2JDB] (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.

4

That a disproportionate number of American

inmates are Black and Latino people adds a racial context to the dehumanizing

nature of the “horse trading” and of mass incarceration generally.

5

See Ashley Nellis, Ph.D, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The

Sentencing Project (Oct. 13, 2021), https://www.sentencingproject.org/publications/color-of-justice-racial-

and-ethnic-disparity-in-state-prisons/ [https://perma.cc/2JFR-RGA3] (“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, https://naacp.org/

* 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.

1.

2.

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).

5.

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resources/criminal-justice-fact-sheet [https://perma.cc/NDG2-MVHX] (“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.

6

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

7

and for sentencing when cases go to trial.

8

See United States Department of Justice, Sentencing, https://www.justice.gov/usao/justice-101/sentencing

[https://perma.cc/B36D-62D7] (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,

9

Bureau of Justice Statistics, Defense Counsel in Criminal Cases, DEPT. OF JUSTICE (Nov. 2000) https://

bjs.ojp.gov/content/pub/ascii/dccc.txt [https://perma.cc/E8MM-GGME] (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/ [https://perma.cc/7HDJ-8288] (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.

10

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 114–19 (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. & POL’Y REV. 61, 63

(2015).

8.

9.

10. See L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, YALE L.

J. 2626, 2636–37 (2013); Kristin Henning, Race, Paternalism, and the Right to Counsel, 54 AM. CRIM. L. REV.

649, 665 (2017) (focusing on cases involving youth).

1214 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:1213