PPuubblliicc DDeeffeennddeerrss
Defense attorneys may also have certain self-
interests that affect their plea bargaining decisions.
One type of defense attorney, the public defender, has
much in common with the prosecutor. Like prosecu-
tors, public defenders are paid a fixed salary; whether
they plea bargain a case or take it to trial has no finan-
cial impact on them. Also similar to the prosecutor,
many public defenders have large case loads that
would be virtually impossible to handle if any more
than a limited few went to trial. Plea bargaining is a
means of handling these large numbers of cases.
Additional pressure on public defenders to plea bar-
gain comes from prosecutors and judges. Due to the
extremely large number of cases that public defenders
must handle, there is a great deal of contact with pros-
ecutors and judges. The personal relationships that
develop as a result of this contact make them particu-
larly vulnerable to pressure. Refusal to plea bargain
on the case at hand when that process is desired by the
prosecutor and/or the judge might well jeopardize
clients in future cases, who might receive harsher
treatment in reprisal.PPrriivvaatteellyy HHiirreedd AAttttoorrnneeyyss
Privately hired defense attorneys also have self-
interests that influence their plea bargaining deci-
sions. Prominent defense attorneys with wealthy
clients may favor trials over plea bargaining for finan-
cial reasons. Attorneys for wealthy clients are paid by
the hour, in most cases. The time spent in preparing
for a trial and on the trial itself are all billable hours;
in contrast, if a case is resolved through plea bargain-
ing, the billable hours are considerably fewer. Taking
a case to trial and winning is important to such attor-
neys for building their reputation as outstanding trial
lawyers; such a reputation is crucial for attracting
wealthy clients. Other privately hired attorneys may
attempt to maximize their financial gain by emphasiz-
ing quantity over quality. Many individuals who are
charged with crimes have very limited resources; they
lack the means to pay an attorney to do all the back-
ground work to prepare a case and present it at trial.
However, some defense attorneys take on a large num-
ber of these cases at a modest fixed rate and then han-
dle the cases very quickly through plea bargaining.
Plea bargaining allows this type of attorney to have a
profitable practice based on quantity.JJuuddggeess
Although most of the actual bargaining goes on
between the prosecutor and the defense attorney, the
judge plays a significant role. It is the judge who must
agree to the terms of the plea bargain; this is particu-
larly true when there has been sentence bargaining as
opposed to charge bargaining. As with the other actors
in this process, judges may also have self-interest con-
cerns that bias their reactions in the direction of plea
bargaining. First, there is the workload issue. Plea bar-
gains are an efficient way to reduce a judge’s work-
load. A second, more subtle issue concerns a judge’s
reputation. A judge’s reputation is harmed when
through some judicial error the results of a trial are
reversed on appeal. However, when a case is plea bar-
gained, there is no trial and hence no possibility of a
judicial trial error. The judge’s interest in plea-bar-
gained solutions often results in direct or indirect
pressure on the other actors to plea bargain.DDeeffeennddaanntt
Obviously the defendant has a self-interest in the
way the case is handled; it is his or her freedom that
is at stake. However, there are a number of issues that
affect a defendant’s preference for trial or plea bar-
gain above and beyond the merits of the particular
case. There are financial concerns. For those defen-
dants represented by a private attorney, a plea bargain
may be seen as a financially less expensive option
than the much more costly trial. Furthermore, there
may be incarceration time issues above and beyond
the potential outcome of a trial. For the defendant
who cannot make bail for a relatively minor offense,
it is possible that even being found not guilty at trial
would result in more jail time than a plea bargain
of guilt.
A major concern of critics of plea bargaining is that
innocent defendants will plead guilty to a crime that
they did not commit. Rather than basing decisions on
a rational assessment of the strength of the case and
the probability of conviction, defendants base their
decisions on faulty information and advice from the
actors who are a part of the system. Although it would
be extremely difficult to document how frequently
innocent individuals actually accept a plea bargain,
some experimental research has found that innocent
defendants are less likely to agree to a plea bargain
than are guilty defendants.560 ———Plea BargainingP-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 560