Responses designed to mitigate the effects of COVID-19 may adversely impact attorney client-communication and the fairness of the plea process

Tarika Daftary-Kapur, Montclair State University
Kelsey S. Henderson, Portland State University
Tina M. Zottoli, Montclair State University

Objective: COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys’ perceptions of whether and how the plea process has changed during the COVID-19 pandemic. Hypotheses: This study was exploratory, and we made no a priori hypotheses. Method: We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. Results: The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. Conclusions: The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic.

plea bargaining, COVID-19, pandemic, defense attorneys, prosecutorial behavior

“We surveyed and interviewed practicing defense attorneys across the U.S. regarding their perceptions of whether and how the COVID-19 pandemic has affected plea bargaining, in particular for detained clients. Our findings suggest that the concerns raised by legal commentators have been realized by some defense attorneys. By virtue of the geographical and jurisdictional diversity of our sample, our data also highlight variation in the impacts of the pandemic for attorneys practicing in different regions, handling different types of cases, or allocated different resources” (p. 92).

“Two general findings emerged in our data. First, the extent to which attorneys can access and advise their clients with regard to their legal options has been substantially impacted; and second, from the perspective of these attorneys, the leverage in the guilty plea negotiation process, has shifted further to the prosecutor. We examine each of these in turn, and briefly reflect on their potential impact on the validity of guilty pleas during the COVID-19 pandemic and the questions that these data pose for future research” (p. 92).

“We narrowly focused our survey on plea bargaining and on the experiences of detained defendants in particular. There are many other questions worth asking about the pandemic’s impact on the criminal justice system that investigators should pursue. These questions need not focus solely on court processes. For example (and as the attorneys in our sample also noted) many of the efforts by courts, prosecutors, and police to mitigate effects of the virus— such as lower arrest rates, increased dismissals and significant reductions in the use of pretrial detention for certain charge categories—have implications for reduction of the criminal justice footprint and alleviation of problems associated with mass incarceration. Systematic follow-up studies on the impacts of these policies in terms of recidivism and community safety would be informative for policymakers” (p. 94).

“Essential to our adversarial system is the right to effective assistance of counsel, but consistent with the problems anticipated by legal scholars, nearly all the attorneys in our sample thought the pandemic had affected their ability to communicate with their clients. These problems included difficulty arranging meetings and providing their clients with adequate access to discovery materials, as well as various issues related to video-conferencing (e.g., confidentiality, building rapport, time-limits) that limited their ability to provide what they believed was effective counsel. Social-distancing protocols posed communication difficulties for attorneys representing detained clients, although getting in contact with nondetained clients was problematic as well, especially for indigent clients who might not have access to a tele- phone or reliable Internet access. Additionally, a small number of defense attorneys noted issues with navigating communication barriers for clients who need interpreters” (p. 92).

“Concerns over the frequency and quality of attorney-client communication existed before the pandemic. These concerns generally center on the issues of expanding case-loads, especially for public defenders. It is well-documented that the caseloads of public defense attorneys often far exceed the standards set by the National Advisory Commission on Criminal Justice Standards and Goals. Attorneys who are overworked and with limited resources already face challenges communicating with clients. The technology and access challenges of the COVID-19 pandemic appear to have exacerbated these issues and raise concerns about the extent to which defendants are making knowing and intelligent plea decisions” (p. 92).

“Pretrial detention during the pandemic may effectively eliminate the option of rejecting a plea—for both guilty and innocent defendants. Similarly, the NACDL (2020) suggested that the shift in leverage to the prosecutor will contribute to ‘coercive plea bargaining’ and ‘lead to wrongful convictions.’ While acknowledging that we have only the perspectives and experiences of a small number of attorneys from which to infer, our data do suggest these concerns are reasonable. Nearly one third of our sample reported having had clients who claimed innocence but were willing to plead guilty for nonincarcerative sentences. Plea bargaining is already a leading cause of wrongful conviction in the U.S.; roughly 20% of documented exonerations involved defendants who pleaded guilty. In a recent survey of defense attorneys, 90% (n = 148) of respondents reported having clients who pleaded guilty despite maintaining their innocence and 45% (n = 74) reported having advised a client they believed to be innocent to plead guilty. While there may be rational reasons for pleading guilty when innocent, the legitimacy of any system of justice is called into question when the predominant mode of conviction is subject to so much error. Procedural safeguards to ensure that guilty pleas are valid and that innocent defendants are protected have proved insufficient, and data from the current study suggest that the COVID-19 pandemic may pose additional risks for some defendants” (p. 94).

Our survey collated the experiences of a small group of attorneys from across the U.S. who have represented clients during the pandemic. We make no claims as to the representativeness of our sample nor do we make any statistical inferences as to population parameters with respect to changes in guilty plea rates, prosecutor behaviors, or other outcomes we discuss. Rather, our goal with this project was to capture as broad a view of perspectives and potential issues as possible, across a wide range of jurisdictions, in order to provide a starting point for understanding the potential impacts of COVID-19 on plea-bargaining. This goal begs the question, why do we need a starting point for a pandemic that will eventually run its course? The downstream impacts of court closures such as backlogs in trial dates will surely outlast the life span of the virus. But, perhaps more importantly, as it has done with other facets of society including the health care system and education, the pandemic has lain bare systemic problems within our already overburdened criminal justice system. The realities of globalization and climate change point to an increased likelihood for new pandemics in the future. We can and should utilize this opportunity to identify system vulnerabilities and contemplate how we will mitigate these problems before we find ourselves face-to-face with another global crisis” (p. 94).

“Our data also do not shed light on potential disparate impacts on Black, Indigenous, and People of Color (BIPOC) defendants. In retrospect we wish we had inquired about the racial and ethnic composition of attorney caseloads and asked for their perspectives on disparate outcomes for BIPOC defendants. We urge future investigators to rectify our omission. BIPOC defendants are over- represented among those who receive custodial sentences and who are detained pretrial. BIPOC individuals, especially Black Americans, have also been disproportionally affected by the pandemic” (p. 94).

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