Attorneys’ perspectives on their clients’ abilities to plead guilty

Amanda NeMoyer, Drexel University
Sharon Kelley, Drexel University
Heather Zelle, University of Virginia
Naomi E. S. Goldstein, Drexel University

An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney— believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

guilty pleas, admissions, competence, attorney perspectives, competence to plead

“The Supreme Court has historically adopted a laissez-faire approach to plea bargains, lauding them for their conservation of judicial resources and declining to scrutinize the practices that have developed around them. In addition, the Supreme Court has handed down few holdings specific to plea bargains because they are commonly believed to occur within the “shadow of the trial,” such that defendants engage in a rational decision making process and accept plea deals based on the strength of existing evidence. Thus, the Supreme Court has often rotely applied the Dusky standard of adjudicative competence (i.e., factual and rational understanding and ability to assist counsel) as the appropriate standard for questions surrounding adult competence to plead guilty. No national standard for juvenile adjudicative competence exists: some jurisdictions apply the Dusky standard used in criminal court, other jurisdictions apply a modified version of the Dusky standard, and one state (Oklahoma) has declined to apply any competence standards to defendants in juvenile court. Competence to plead guilty is therefore generally considered to include factual understanding, rational understanding, and ability to assist counsel” (p. 171-172).

“Defendants who plead guilty waive a multitude of rights—a total of 40 according to Redlich and Bonventre (2015). As a result, the waiver of rights standard (i.e., that a waiver be knowing, intelligent, and voluntary) also applies when a defendant seeks to plead guilty. As Justice Thomas articulated in Godinez: The focus of a competence inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the defendant is uncoerced.

In sum, then, there are several requisites for a valid guilty plea, each of which could be a point of concern for a defense attorney. The process for bringing a potential case of incompetence to the court’s attention mirrors the process for other competencies—both in theory and in practical application. Because of the importance of proceeding only with competent defendants, any of the three actors (prosecutor, defense attorney, judge) may serve as gatekeeper and raise questions about competence to plead guilty. Nevertheless, this role typically falls to the defense attorney, who has relatively more interaction with the defendant and is duty bound to discuss pleas with his or her clients. Given the weight of responsibility associated with this gatekeeper role, it is critical to understand defense attorneys’ experiences related to questioning clients’ competence to plead guilty. Nevertheless, little is known about which considerations are of greatest concern to attorneys, whether attorneys view certain client characteristics as likely related to deficits of certain requisites, or other perspectives attorneys might have regarding application of the standards to their clients” (p. 172).

“Despite evidence suggesting that a considerable number of juvenile and adult clients demonstrate deficits that implicate the ability to plead guilty, no empirical studies have examined defense attorneys’ perspectives on their clients’ abilities to plead guilty. The few existing inquiries into defense attorneys’ experiences with competence to plead guilty have typically been speculative in nature, with conclusions drawn from a small number of individual defense attorney interviews rather than a systematic survey. Further, no researchers have examined the proportion of lawyers who have faced this issue, nor have researchers examined the underlying reasons for why attorneys have or have not raised the issue. To fill these gaps and add more quantitative data to literature in this area, the current study surveyed defense attorneys about their experiences questioning clients’ competence to plead guilty— both for juvenile clients in juvenile court and for adult clients in criminal court” (p. 173).

“Results indicate that a considerable majority of attorneys have raised questions about their juvenile and adult clients’ competence at the pleading stage. It is interesting to note that although a greater proportion of attorneys endorsed [factors that had] ‘ever’ [contributed to] having raised this issue for their adult clients, attorneys who had raised this issue before tended to report having done so more frequently for juvenile clients than for adult clients. It may be that, in general, attorneys are more inclined to raise this issue for adult clients given the increased severity of direct and collateral consequences for pleading guilty in criminal court as compared with juvenile court (e.g., prison sentence vs. juvenile probation). However, once attorneys decide that they will raise this issue for juvenile clients, they might raise it more often because of the frequency with which cognitive deficits and other challenges related to developmental immaturity contribute to questions related to the ability to competently proceed at the plea stage. Of course, the fact that attorneys with criminal court experience reported representing more adult clients (as compared with the number of juvenile clients represented by attorneys with juvenile court experience) may have contributed to the difference in whether they had ‘ever’ raised this issue for their adult clients; however, the fact that attorneys reported raising this issue more frequently for juvenile clients despite representing fewer juvenile clients overall seems to strengthen the suggestion that this issue is particularly relevant for clients in juvenile court.” (p. 177).

“Further, the focus on the ability to assist prong of the competence standard—of all the available components of the competence and waiver standards—may be the product of practical necessity. That is to say, attorneys in the preplea context are likely to find themselves more reliant on their clients than in later stages because they have not yet had the opportunity to review materials or develop a defense strategy. This reliance could be further increased in “closed-file” jurisdictions, where prosecutors are not required to provide as much preplea discovery. Thus, of all the prongs, the ability to assist prong is more pressing at this stage than the need for a client to understand the consequences of a plea bargain (which the attorney will likely address as plea bargaining progresses) or the need for a waiver to be knowing (which will be addressed later by the court via a plea colloquy)” (p. 177).

“Finally, our hypothesis that attorneys would report not raising the issue to avoid negative consequences for their clients was arguably supported—length of detention/incarceration and obtaining a better plea were among the most often cited reasons; however, concern about timely resolution of a case and maintaining relationships in the court (which might have an indirect negative effect on a client) were not frequently reported. It is worth highlighting that the clear ‘lead’ reason for not raising the issue in the case of both adult and juvenile clients was attorneys’ belief that, despite their perceptions of clients’ deficits, their clients would not be found to fall below the low threshold of the competence standard. Further suggesting the salience of this issue, 18% of participants who voluntarily responded to a final, open-ended request for additional information reported a belief that the competence threshold is far too low as currently defined” (p. 177-178).

“It appears that attorneys are raising this issue for juvenile clients based on a wider variety of reasons than they are for adult clients, for whom mental illness appears to be the major motivating factor. This trend might suggest that attorneys working with juvenile clients, in particular, could benefit from additional training focused on identifying the appropriate reasons to raise this issue and how to do so in a successful manner” (p. 177).

“It is generally accepted that the decision to plead guilty is in the purview of the client, which would seem to require, by extension, that an attorney raise the issue of competence when in doubt—a decision to plead guilty can hardly be the meaningful client choice countenanced by legal ethics and guidelines if it is made by a client who is incapable of making informed decisions. Yet, defense attorneys are also aware of the many external forces at play in the justice system and the paradoxical negative outcomes that might flow from their attempts to prevent a client from making this decision while incompetent. This diametric tension seems to defy resolution, leading even the recently revised ABA (2016) Criminal Justice Standards on Mental Health to simply leave the problem at the feet of defense attorneys: “If the defense attorney has a good faith doubt concerning the defendant’s competence to make decisions within the defendant’s sphere of control . . . , the defense attorney may make a motion to determine the defendant’s competence” (Standard 7–5.2, emphasis added). This dilemma underscores the need for additional guidance for defense attorneys as well as system-wide changes that reduce the tension in the first place” (p. 178).

“The sheer volume of cases that are processed via plea bargaining should already be enough to spur meaningful scrutiny of how the plea process works, and data regarding the proportion of defense attorneys who have faced internal questions about their clients’ competence without raising the issue add to that pressure. These findings—and the results of future research in this area—ought to prompt serious dialogue about and examination of the extent to which justice systems are (not) effecting due process via their uncritical reliance on an expedient, but largely unregulated, procedure” (p. 178).

“The current study was merely an early step in identifying potential issues related to attorneys’ decisions to raise—or not raise—questions about their clients’ competence to plead guilty and was limited in several ways. First, the data were gathered by a self-report survey and, therefore, were likely affected by issues such as participant self-selection and cognitive bias. For example, few attorneys endorsed maintaining relationships with the court as a reason for not raising competence to plead guilty; it may be that this reporting reflects reality, but it also may be that social desirability effects deterred participants from endorsing some of these reasons. In addition, the item options were not randomly ordered, which may mean that the frequency with which they were endorsed was affected by where they were located within each option list. As noted in the Methods section, we chose not to inquire about how many times attorneys doubted clients’ competence but did not raise the issue. An estimate of how frequently this professional quandary arises would further strengthen the call for clearer guidelines and potential system reform, but we felt the current survey design was not the best approach for obtaining accurate information on that point. Finally, because the study focused solely on juvenile clients in juvenile court and adult clients in criminal court, we did not examine juvenile clients who are tried in criminal court. Because this group can face more severe sanctions than defendants in juvenile court while still demonstrating cognitive and developmental immaturity, questions of competence to plead guilty may arise more frequently for these clients. Future research should address this omission” (p. 178).

“Future studies should also examine judges’ perspectives on the issue, with attention to both standards that apply at the pleading stage (i.e., competence to plead, rights waiver validity). Attorneys might also be asked more explicitly about both standards, as well, given that the current study included rights waiver standard prongs as item options but phrased all questions in terms of competence to plead guilty. It would be informative to know whether attorneys and/or judges see the two standards as complementary or effectively the same—or perhaps they may even view one or the other as rather ineffectual or redundant. To build upon the current study, future research should also collect more qualitative data that will allow for a more nuanced understanding of the reasoning and tensions at play when defense attorneys are faced with clients who may be incompetent to plead guilty” (p. 178).

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