An Unfortunate Proposal to Encourage Plea Bargaining Early and Often

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

The UK Ministry of Justice is proposing to save £220 million (approximately $351 million) by paying lawyers so that they will receive more money if they plead their clients guilty early in their criminal case, rather than waiting longer or going to trial.

According to the London Criminal Courts Solicitors Association, there are situations under this budget proposal where a lawyer who enters a quick guilty plea for their client could earn a 75% fee increase.

As one British solicitor commented, “”By law, we’re already obliged to advise our clients about the benefits of an early guilty plea, by way of credit on their sentence … It doesn’t take a legal background – or criminal record – to realize that these incentives for a guilty plea and disincentives for a trial are an affront to justice.” British lawyers are protesting these proposed changes.

Many parts of the United States already have such a system in place for indigent defendants, although it is not as overt. Instead of offering to pay defense lawyers more to plead a case guilty early in the process, the possible rate of pay is set low and a cap is put how much an appointed lawyer can receive for each case, regardless of whether it goes to trial or not. The practical result of such a system is that lawyers are financially penalized for taking cases to trial. This is even more of a concern where the caps are set so low that lawyers who go to trial do so at their financial peril. One study found that twenty states use flat fee structures (see here and for some examples of poor pay see here).

It is unfortunate to see a proposal such as this coming from the UK considering the strong British tradition of guaranteeing the right to a lawyer in criminal cases. I have worked with many British lawyers over the years and have been consistently impressed with their high levels of professionalism. I can only hope that professionalism will prevail and this proposal won’t be adopted.

                       

Cynthia Alkon

Cynthia Alkon joined the faculty at Texas Wesleyan University School of Law in 2010. She was an assistant professor of law at the Appalachian School of Law from 2006-2010. Prior to joining academia, Professor Alkon was a criminal defense lawyer and worked in rule of law development in Eastern Europe and Central… MORE >