Tuesday, August 8, 2017
Gabriel "Jack" Chin (University of California, Davis - School of Law) has posted Pleading Guilty Without Client Consent (William & Mary Law Review, Vol. 57, No. 4, 2016) on SSRN. Here is the abstract:
In some cases, lawyers are, and should be, permitted to conclude plea bargains to which their clients have not agreed. Because clients bear the consequences of a conviction, ordinarily, clients should choose between a plea and the possibility of acquittal at trial. Further, clients have the right to decide that even though conviction is practically certain, moral or political reasons warrant insistence on a trial. But some clients have the goal of minimizing incarceration, have been offered reasonable pleas, face substantially greater sentences if convicted after trial, have no plausible ground for acquittal — and nevertheless decline to plead guilty. They may do so because they are cognitively unable to make a decision or complete a plea colloquy, or because they are holding out for a miracle. The traditional understanding of lawyer-client decision-making authority would lead to the conclusion that the client has the absolute right to reject a plea, even if it inevitably makes the client worse off, on her own terms, by increasing the imprisonment she is trying to avoid. This Article proposes that the Supreme Court’s decision in Florida v. Nixon leads to a different conclusion.