Should Attorneys Include Parents in Plea Bargain Discussions with their Clients?

Erika N. Fountain, University of Maryland
Jennifer L. Woolard, Georgetown University

Objectives: Research on plea bargaining is increasing; yet, much of this work examines how the process unfolds in adult court. Plea bargaining in juvenile court has several notable differences such as pa- rental involvement. Including parents throughout the adjudicatory process is encouraged but ultimately left up to the attorney. Research has not explored whether attorneys include parents in plea bargain discussions with their clients. The present study examined parental involvement in the juvenile plea bargain process. Hypotheses: We did not have any formal a priori hypotheses for this exploratory study. Method: The first author conducted qualitative interviews with eighteen defense attorneys from the juvenile division of a public defender’s office on the East Coast where we discussed their most recent case that resulted in a plea bargain. Results: Parents were included in plea negotiations and hearings. Attorneys described seeking parental input because parents may be impacted by the terms of the plea and because the court often seeks parental approval. During hearings, parents offered input regarding their child’s ability to plea, the disposition plan, and whether they support their child’s decision to plead guilty. Conclusions: Pleas might impact parents, so it may be impractical to overlook their interests. However, parent and child interests may conflict, and parents often lack understanding of their children’s rights and pleading generally. Therefore, attorneys must not only advocate for their clients but also educate and manage parents’ interests both inside and outside the courtroom.

plea bargain, juvenile court, attorney practices, parental involvement, qualitative methods

“The overwhelming majority of adult and juvenile convictions or adjudications are decided through plea bargaining. A burgeoning research area, scholars have begun to explore how juvenile guilty plea decisions are made and whether juveniles are as capable of making knowing, intelligent, and voluntary plea bargain decisions as adults. While the Supreme Court of the United States has held that a defendant can plead guilty if they are found competent to stand trial, research has consistently shown that developmental immaturity can raise the risk of poorer competence-related capacities. Psychologists have also begun exploring the plea bargain context in both juvenile and adult courts to assess important contextual factors that may also impact how adolescents make these decisions. For example, while some evidence suggests adolescent legal decision making can be facilitated by spending more time with one’s attorney, in practice, examinations of the plea bargain process have shown these decisions are often rushed and attorneys actually have very little time to discuss plea bargains with adolescent clients” (p.113).

“A unique feature of juvenile plea bargain decision making is the role of parents. While parents do not have the legal authority to decide how to plead on their children’s behalf, evidence suggests that some parents are actively involved in advising their children how to plead and, in some jurisdictions, signing their children’s tender-of-plea forms. National juvenile defense standards emphasize the importance of working with the client’s parents throughout court proceedings, albeit within some limits. The current study explores the strategies and decisions made by juvenile defense attorneys from a large city on the East Coast about including parents in the plea bargain process and investigates how parental involvement may impact the ways they represent their juvenile clients” (p. 113).

“Attorneys described including parents in conversations with their client about the plea offer whenever possible. Of the attorneys who included parents in the discussion with their client, most reported doing so in order to ensure the plea would be accepted by the court. While parental support of the child’s plea decision is not a legal requirement in this jurisdiction, attorneys described an implicit understanding that garnering parental support would help to ensure the plea would be accepted by the court. The attorneys argued that this resulted from their experience of many judges asking parents whether they support their child’s decision to plead as well as the terms of negotiated disposition” (p. 119).

“Our findings echo and expand on Sanborn’s (1992) observations by suggesting that in some jurisdictions it may be commonplace for a more robust conversation to be taking place between the court and the child’s parents. These attorneys indicated that parents were almost always present during the plea hearing and were often asked specific questions about their child’s decision. Attorneys described parents providing input on whether they approve of their child’s decision, whether the child understands the decision they are making, and for input on the negotiated disposition plan. They also described relying on parents signing tender-of-plea forms as a way to indicate to the court that the parent supports their child’s decision” (p. 120).

“Our findings expand the research on adolescent plea bargaining by contextualizing how the process unfolds in juvenile court and by shedding light on the motivations and strategies of juvenile defense attorneys. Our findings parallel Sanborn’s (1992) findings that judges may ask for parental input on their child’s plea decision and additionally suggest that this practice may explain, in part, why attorneys include parents in the negotiation phase of the process. Juvenile clients may opt to have their parents present during plea discussions for support. While at times this may be a necessary and welcomed support for the client, parents may not be sufficiently knowledgeable to serve as a legal advocate and may have conflicting interests. This may require defense attorneys to spend already limited time educating parents and managing, or at worse prioritizing, parents’ interests over their client’s. Importantly, adolescent decision making in stressful and emotionally salient contexts is likely to be short sighted and influenced by pressure of authority figures. As was seen in Lionel Tate’s case, some may rely heavily on their parent’s input when deciding how to plead; yet, parents are at risk of misinforming their children about the best course of legal action. Given attorneys’ descriptions of why they involved parents, it is not unrealistic to assume that parents who have strong opinions about their child’s plea decisions and disposition are likely to impact their child’s decision-making process. The current study highlights the impact of requesting parental input in juvenile pleas on attorney behavior and leaves us with more questions. Future research should explore how adolescents’ plea bargain decisions are shaped by parent interests, how attorneys negotiate the potential costs and benefits of parental involvement, and how judges and attorneys respond to potential conflicts of interest between parents and their children” (p. 122).

“While parental approval may seem developmentally appropriate as most legal decisions require parental consent and parental support is often needed throughout disposition, the law does not give parents the authority to waive their children’s right to trial for important reasons such as to protect the juvenile from any potential conflicts of interests with their parents. The practice of seeking parental approval of their child’s plea potentially contradicts the legal exclusion of parental consent of their child’s plea decision. Negotiating to find a suitable disposition that works for the youth and their parents may have important benefits. However, when conflicts of interest arise, it is possible that the youth’s interests are overshadowed by their parents’. This is one of the reasons why standards of practice already require attorneys to prioritize the client’s interests. Unfortunately, these recommendations are often silent on how exactly attorneys should balance the interests of their client and their parent when the court seeks (even informal) parental input on the child’s negotiated plea and disposition. If the client’s primary interest is to secure a deal in order to avoid a trial, then this compromise may not erode the client’s interests at all. If the parent wants the child to be placed outside of the home or reject a plea to avoid financial responsibility, the compromise may result in a different outcome than the client would have wanted” (p. 121).

“Seeking parental approval may unintentionally incentivize attorneys to account for or even prioritize parental interests and to make parents collaborators in plea negotiations. While juveniles are legally required to decide how to plead on their own, in practice, their plea bargain negotiation and ultimate decision may be affected by whether or not their parents agree. While the national juvenile defender standards encourage attorneys to ‘limit the parent’s negative effect on the client’s outcome by limiting the parent’s role in the proceeding as much as possible’ when conflicts arise, this may be difficult in jurisdictions where parents are encouraged by the court to provide input during the proceeding. Standards of practice may need to be expanded to address how attorneys can ‘limit the negative effect on the client’s outcome by limiting the parent’s role’ in situations where parental support does not exist but is expected by the court” (p. 121).

“There are many important topics and situations that were not covered by this interview but warrant future research. First, research should explore attorneys’ experiences in situations where a child claims innocence and their potential reliance on Alford pleas in juvenile court. Secondly, we unfortunately do not know the ages of the clients the attorneys discussed with us. Future research should explore whether the attorney-parent relationship varies based on the age of their client and how parental input impacts decision making for youth of different ages. How, if at all, do attorneys account for age and other developmental factors when deciding to include parents in discussions with their client? Importantly, the literature would benefit from a more in-depth exploration of how attorneys work with parents who disagree or have conflicts of interest. As discussed earlier it is not uncommon for conflicts of interest to arise; future research should explore how attorneys navigate these conflicts with parents while prioritizing their client’s expressed interests. Additionally, recent work has shown that legal actors’ perspectives of juvenile engagement within the plea bargain process vary. They found that defense attorneys often evaluated juvenile clients as less engaged than prosecutors and judges did. Therefore, it is possible that judges and prosecutors may also evaluate parental involvement differently than defense attorneys. While this work focused specifically on the experiences of juvenile defense attorneys, future research should explore judicial and prosecutorial perspectives on parental involvement throughout the juvenile court process. Finally, as juvenile jurisdictions vary, re- searchers should explore the practice of parental involvement in plea bargaining in other jurisdictions as well” (p. 121).

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