The Shadow Bargainers by Ronald F. Wright, Jenny Roberts, and Betina Cutaia WilkinsonCall Number: 42 Carodozo L. Rev. 1295
Publication Date: 2021
Plea bargaining happens in almost every criminal case, yet there is little
empirical study about what actually happens when prosecutors and defense lawyers
negotiate. This Article looks into the bargaining part of plea bargaining. It reports
on the responses of over 500 public defenders who participated in our nationwide
survey about their objectives and practices during plea negotiations.
The survey responses create a rare empirical test of a major tenet of negotiation
theory, the claim that attorneys bargain in the "shadow of the trial." This is a theory that some defenders embrace and others reject. Describing the factors they believe to be important in plea negotiations, some public defenders-those who emphasize the importance of collateral consequences or the pre-trial custody of their clients-do not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework. These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome. Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor toward an outcome that is independent of any likely trial result or post-trial sentence. These defense attorneys, we argue, bargain in the "shadow of the client.