Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?

Because of the pleas they negotiate and recommend to their clients, criminal defense attorneys are partially responsible for the disparities in sentence length and incarceration rates observed among defendants of different races. Though they rely heavily upon the strength of the evidence in a case, defense attorneys often consider how their client’s race will affect trial outcomes when recommending plea deals. Based on their personal courtroom experiences, the attorneys expect that jurors will react less favorably to a minority defendant. Thus, the pleas that defense attorneys secured for minority clients involved longer sentences and carried a much higher risk of jail time than those secured for white clients. A study contacted over 800 practicing defense attorneys via email, and the 101 participants considered which of twelve factors they would prioritize in defending a client in a hypothetical robbery case. The participants reflected the same tendency to recommend harsher plea bargains for minority clients than for white clients. The participants did not personally believe that the minority clients were more likely to be guilty. The factors most-often guiding their decisions included likelihood of conviction based on evidence, the severity of the sentence if convicted at trial compared to the sentence offered at plea, the defendant’s ability to present well to the jury, and the defendant’s criminal record.

“Here there was no biased jury, nor was there a prosecutor or a judge to blame. The only person to blame for the differential treatment was the defense attorney, and by the recommendations of the defense attorney, Robert Williams, the African American client, was more than three times more likely to be encouraged to accept a plea that included jail time than Robert Williams, the Caucasian American client.” p. 424