Co-founder of this blog, Molly J. Walker Wilson, has written an important article, Defense Attorney Bias and the Rush to the Plea, about psychological biases that infect the plea bargaining process. A topic near and dear to my heart (see here), Wilson’s article is a must read for anyone interested in the human behavior that drives what she describes as the “‘meet-em-and-plead-em’ culture of public defense.”
This summary from the article provides a snapshot:
This article challenges the current attorney-controlled, plea-bargain system of criminal justice and calls for a greater role for criminal defendant choice in pretrial decisions. The central claim of this Article is that defense attorneys are vulnerable to biases that influence their perceptions of their clients’ cases and predispose them to be overly favorable to plea deals. Giving defendants more voice in pretrial choices will lead to more pretrial investigation and fewer ill-advised plea deals.
Part II of this Article discusses the psychological biases that influence defense attorney decision-making. These biases include those resulting from repeat experience with the criminal justice system, biases associated with a desire to confirm existing beliefs, and biases that are motivated by a need to preserve one’s own positive self-concept. Part III delves into the phenomenon of the “meet-em-and-plead-em” culture of public defense. This Part outlines the features of the current crisis in public defense and explains how the lack of resources lead public defenders to pressure clients to take deals offered by prosecutors. Part IV introduces the problem of the innocent indigent defendant and explains why attorneys’ incentives to pressure clients to take deals can result in bad choices. Part V provides a closer look at how lawyers’ biases lead them to favor deals and how courts nevertheless routinely privilege attorney choice. Part VI proposes an alternative model, one in which the criminal defendant himself plays a dominant role in every major step in the criminal defense process. This Part reveals a number of advantages to a defendant-led defense, and provides a data-driven rationale for why the defendant, and not the attorney, should be in control of the decision process.