The Shadow Bargainers

Abstract

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” This is a theory that some defenders embrace and others reject. Describing the factors they believe to be important in plea negotiations, some public defenders – those who emphasize the importance of collateral consequences or the pre-trial custody of their clients – do not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework. These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome. Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence. These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial. Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation.

After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices. Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations. Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer. Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice.

Keywords: Plea Bargaining, Negotiation Theory, Defense Counsel

JEL Classification: K14, K41