Roughly 95% of criminal convictions result from guilty pleas, most of which follow some form of plea bargaining. Legal scholars have suggested that the leveraging of charging power by prosecutors makes plea bargaining coercive, compelling defendants to forfeit their trial rights. More recently, some have asked whether the COVID-19 pandemic could exacerbate existing problems with the plea-bargaining process. Limited attorney-client contact, the lack of jury trials, and prolonged pretrial detention could increase coercion in plea bargaining, leading to false guilty pleas.
To understand whether the COVID-19 pandemic is affecting the plea-bargaining process, researchers Tarika Daftary-Kapur, Kelsey Henderson, and Tina Zottoli surveyed practicing defense attorneys across the United States about their perceptions of whether and how the COVID-19 pandemic has affected plea bargaining, particularly for detained clients. In their study published in Law and Human Behavioropens in new window, attorneys (n = 93, representing 19 states) were asked whether and how the pandemic has affected court procedures (e.g., suspension of speedy trial), plea bargaining and prosecutorial behavior (e.g., changes in plea offers), and defendant decision-making (e.g., voluntariness of the guilty plea). To contextualize their survey results, they conducted follow-up interviews with a small sample of 13 defense attorneys.
Two main findings emerged.
First, the extent to which attorneys can access and advise their clients with regard to their legal options has been substantially reduced. Most of the attorneys (86%) indicated the pandemic had affected their ability to communicate with their clients. Problems included difficulty arranging meetings and giving their clients adequate access to discovery materials. In addition, issues related to videoconferencing (e.g., confidentiality, building rapport, time limits) limited their ability to provide effective counsel.
Second, 81% of the defense attorneys surveyed indicated that the plea process had changed, though whether this change favored the defendant, depended on various factors, including prosecutorial behavior. From the perspective of these attorneys, overall leverage in the plea negotiation process has shifted further to the prosecutor. Some defense attorneys stated that prosecutors were less willing to negotiate, knowing that the possibility of a trial in the near future (often used as leverage by the defense) was slim; others were more willing to dismiss or plead out low-level cases for noncustodial sentences or time served than they had been before the pandemic. Although a quick plea has many advantages for defendants, such offers can compel pleas from defendants who have a good chance of winning at trial or having charges dismissed.
These effects may be exacerbated when a plea leads to immediate release from jail. Among surveyed attorneys, 65% believed that their detained clients were feeling pressure to plead guilty because of the spread of COVID-19 in jails. Additionally, nearly one-third reported that clients who claimed innocence were willing to plead guilty to avoid being locked up during the pandemic.
Daftary-Kapur et al. concluded that responses designed to mitigate the effects of COVID-19, such as court closures and virtual hearings, may adversely affect attorney–client communication and the fairness of the plea process for defendants; and that procedural impacts of the pandemic may worsen factors that put defendants at an informational disadvantage to prosecutors, leading to concerns about the voluntariness of guilty pleas.
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