Defending People

As defenders, we often have to help people decide whether to plead guilty or proceed to trial.

Sometimes the question can be simplified to this: how does the assured outcome of a plea compare to the accused’s punishment if we do not, multiplied by the proability that we will not?

If the probability of prevailing at trial is 50% and the punishment if the accused loses will be 10, then the accused will rationally accept a plea resulting in punishment of less than 5.

I use numbers without units — “10,” “5″ — for the punishment because factors other than the length of the sentence might affect the severity of the punishment. Different punishments might have subjective costs to an accused that are not directly proportional to the length of the sentence. For example, to an accused who is in very poor health there might not be any perceptible difference between two years in prison and twenty — either might be a death sentence. Similarly, the damage done to an accused’s reputation by the mere fact of a conviction may be so great that the possibility of more jail time is of relatively little importance — a conviction with probation might be a 9 and a year in jail might be a 10. To some accused of capital murder, a death sentence might seem preferable to life in prison with no hope of parole.

Of course, all of this is a clear approximation of what is in reality a vague and fuzzy calculus. Only the accused can make the decision whether to plead guilty or not. The lawyer’s job is to give the accused as much information as possible to allow her to compare the consequences of a plea with the the likely outcome of a trial and make the decision that is best for her. At least one of these numbers — the probability — is generally no better than a guess based on the lawyer’s experience and intuition.

The same is also true in most Texas state cases of the potential punishment after trial. The costs of the various potential punishments can only be determined by the accused, but the lawyer can educate her about the collateral consequences (immigration, employment, and so forth) as well as better explain the direct consequences of any hypothetical outcome.

There is a good argument that other considerations than the self-interest of the accused should enter into the plea / trial decision; I’ll write about that argument soon.

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