Academic journal article Law and Contemporary Problems

State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense

Academic journal article Law and Contemporary Problems

State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense

Article excerpt


The plea bargaining process receives minimal oversight from the courts and contains scarce regulatory protections. In the past few years, however, the Supreme Court has issued three decisions that incrementally expand the requirement of adequate assistance of counsel for criminal defendants. The Court has held that the failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, (1) exceedingly poor advice about rejecting a plea offer, (2) and counsel's failure to even convey the terms of a plea deal all constitute breaches of a defendant's Sixth Amendment right to representation. (3) Although these decisions do not portend significant constitutional regulation of prosecutorial tactics or changes to the terms of plea agreements themselves, they have unexplored potential to affect the failing system of public defense.

The Court's opinions lie at the intersection of two "markets" in the criminal justice system: plea bargaining and the provision of indigent defense. The system of plea bargaining relies on free-market conceptions of private ordering, and the process reflects minimal concern with coercion or fairness. Prosecutors are permitted to threaten any legal sanction to induce a plea, and broad potential charges combined with disproportionate sentencing statutes generate substantial leverage. The courts' longstanding "deregulatory" approach indicates indifference to unequal resources and asymmetrical information. The advice of counsel in theory guarantees a voluntary plea despite the hard bargaining permitted in the process.

The vast majority of defendants engaged in plea bargaining--several million each year--rely on a publicly funded system for the provision of counsel. (4) Thus the state not only initiates the criminal process and funds the prosecution but also organizes the market for indigent defense. Staggering caseloads and minimal standards have produced an acute crisis in that system. To date, there has also been limited judicial oversight of the adequacy of defense counsel. Though there is a constitutional entitlement to representation, the Court has resisted any particular guidelines for attorney performance.

But by imposing even modest new requirements in the recent trio of cases, the Court has created a potential conflict between the efficiency of the plea bargaining market and the failing market for the representation of indigent defendants in the states. If certain information must be provided to clients in order for plea agreements to stand, then defense lawyers need enough resources to spend a few minutes more with those clients. Moving that lever--with the external force of court-imposed baselines for plea advice--has the potential to alter the state's incentives and propel the market toward a new equilibrium. In other words, if the constitutional floor even slightly expands the amount of time counsel must spend with defendants to ensure that pleas will be upheld, then the resources allocated to indigent defense might increase as well.


Negotiated settlements of criminal prosecutions resolve approximately ninety-seven percent of all cases in the federal system and ninety-four percent of criminal cases in state courts. (5) The Court has recently recognized that it no longer makes sense to conceptualize plea bargaining as a process that occurs in the shadow of a potential trial. Plea bargaining simply "is the criminal justice system." (6)

Plea bargaining is also almost entirely unregulated. A completed plea agreement has the same force and effect as a jury verdict following a trial, (7) yet the judgment issues largely without any public adjudication or concern with public law conceptions of fairness. The Federal Rules of Criminal Procedure set forth some procedural requirements for the entry of guilty pleas, (8) such as informing a defendant of her trial rights and the statutory maximum penalties she may face. …

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