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

Abstract

This essay considers the intersection of two “markets” in the criminal justice system: plea bargaining and the provision of indigent defense. Plea bargaining has long been justified by free-market conceptions of private ordering and is subject to limited judicial oversight and regulation. The vast majority of defendants engaged in plea bargaining — several million each year — also rely on a publicly funded system for the provision of counsel. Staggering caseloads and minimal standards have produced an acute crisis in that system. Yet in three recent decisions, the Supreme Court has incrementally expanded the requirement of adequate assistance of counsel for defendants engaged in plea bargaining. The failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, exceedingly poor advice about rejecting a plea offer, and counsel’s failure to even convey the terms of a plea agreement all constitute breaches of a defendant’s Sixth Amendment right to representation. 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 system of public defense. By imposing even modest new requirements, the Court may have created a 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—could alter the state’s incentives. If the Court’s recent decisions even slightly expand the amount of time counsel must devote to defendants to ensure that pleas will be upheld, then the resources allocated to indigent defense might increase as well.