I have been reading The Shadow Bargainers,  a detailed study on plea bargaining practices in several public defender offices.  Ronald Wright, recognized for important research on prosecutors, plea bargaining and other issues, Jenny Roberts, a recognized authority on collateral consequences and public defense, and Wake Forest University Professor of Politics and International Affairs Betina Wilkinson, explore the differences between defenders who negotiate in the ”shadow of the trial,” meaning that negotiation is driven by the potential outcome from a trial and the potential sentence that could be imposed following trial, and those who negotiate in the “shadow of the client,” meaning  they attach the highest priority to their client’s “wants and needs.”  This research is worthy of a longer, more detailed discussion in a separate post.  For now I want to briefly comment on a new and troubling development; plea negotiation in the “shadow of the virus.”

I spent many years representing clients charged with a variety of criminal offenses.  I like to think of myself as a trial lawyer, and I did take cases to trial, but most cases are resolved in the criminal justice system through a negotiated guilty plea.  As a defender, whenever you work to negotiate a non-trial resolution, you deal with a large number of variables; the policies and attitude of the prosecutor, in some cases the input of victims, the goals and expectations of the client, the set of facts you are dealt – or develop – and the law you are dealt – or try to develop.  One constant, however, was that your client always had the right to reject any plea offer and demand a trial. Indeed, the whole notion of a plea bargain is that the client has the option of rejecting the offer, which requires that there be a possibility of trial. I tried cases in which the jury rejected the prosecution’s case, and my share of cases in which the client’s decision to exercise their constitutional right to a trial may not have been wise.  In all of these, the fact that the client controlled the ultimate decision to insist on a public trial in which the prosecution had to prove their case beyond a reasonable doubt was a bedrock foundation for our system of justice. Trials allow the defense to expose the weaknesses in the prosecution’s case, and keep the public informed about the operation of the criminal justice system

If defenders, and their clients, have historically negotiated in some combination of the shadow of the trial and the shadow of the client’s wants and needs, COVID-19 has added a new and potentially overriding shadow; the shadow of the virus.  Clients in pre-trial custody sit in jails that are current or potential hot spots for infection, knowing that protections from the virus and health care if needed may be minimal.  While some prosecutors and judges are working to reduce jail populations by lowering bonds and removing people from jail, there are clients who remain in jail because they cannot meet a bond.  COVID-19 has not only increased the potential harm from extended pre-trial incarceration, it has effectively limited the option of rejecting a plea.  In many jurisdictions, jury trials are simply not happening, at least not any time soon. For example, some judicial officials in Connecticut have announced that there will be no jury trials until 2021.  Social distancing with 12 or more jurors, counsel, a defendant, a judge, clerks, bailiffs, witnesses, a court-reporter and potentially members of the public in courtrooms designed before the pandemic is near impossible.  How would a jury trial operate if all or most the participants wore masks, or needed to stop if one participant tested positive for the virus?   While the lack of trials may slow the resolution of cases in which the person is not in custody, it will also impact some incarcerated clients who would otherwise seek a trial.

COVID-19 has replaced the “shadow of the trial” with the “shadow of no trial any time soon,” and added avoiding serious health consequences to the wants and needs of the client.  Negotiating in the shadow of the virus is becoming a reality for clients sitting in jail, who can get released more quickly if they give up their right to a trial.  I have heard from both private lawyers and public defenders that the dual impact of the possibility – or reality – of the virus in jail, and the risk of significant delays in trials, is leading some people to take pleas that they would not otherwise take.  In some cases, the pleas are being offered by prosecutors who are not seeking to take advantage of the situation, although clients are still making decisions based on the virus and the lack of trials, while in others prosecutors seem willing to use the additional leverage.  For example, a client who had insisted on a trial, and who could not get their bond lowered, took a plea to get out of jail after they contracted the virus solely to seek better medical care.

At some point there will be time to look at data to see whether the virus had a significant or lasting impact on the outcomes for clients who were detained pre-trial, and potentially to litigate whether all of these pleas were voluntary.  In the meantime, the justice system must find a way to reduce the impact of the virus on the basic right to insist on a trial.