The conversation almost always begins in jail. Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made. Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week. And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.
Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release.
In what little time exists before the plea expires, you dispatch your overworked investigator to identify, find and interview witnesses. In federal and in many local courts, the prosecution is not obligated to reveal its witnesses before trial. You and your investigator do your best to assess whether the case rests on unreliable eyewitnesses, faulty assumptions or witnesses with reasons to fabricate an account, which you cannot fully explore because — remember — the prosecution has not even disclosed who they are.
Why not ask your client for leads? That might work if the person were guilty. Innocent clients are generally the least helpful, because they often cannot tell you what they don’t know.
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.
The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.
You think back to a man who once visited your office for help getting the record of his sole conviction sealed. Before the conviction, he had a job, a girlfriend and a newborn daughter. Then he lost a drug case in which a pistol was found nearby. At sentencing, the judge acknowledged the inappropriateness of the five-year mandatory minimum and even asked the prosecution to consider dismissing the charge that carried the mandatory time. It didn’t. When he eventually got out, you couldn’t even help him seal his record so he could move forward with his life because, in your jurisdiction, felonies can never be sealed.
The other option, you explain to your client, is to accept the plea offer. In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades. It’s no wonder 95 percent of all defendants accept plea offers. Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.AD
You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday. But your client would have to accept responsibility for a crime they may not have committed.
The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.
The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.”