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Photo of Matt M. McClenahen
Photo of Matt M. McClenahen

Do Private Attorneys Get Better Plea Deals than Public Defenders?

On Behalf of | Jul 23, 2014 | Plea Deals


The fact that private criminal defense attorneys always seemed to get better plea deals for their clients than public defenders irked me to no end during the five years that I spent as a public defender at the start of my career as a criminal defense lawyer. This discrepancy in plea offers extended to private counsel versus public defenders was so universally known that my mentor in the Public Defenders’ Office would advise defendants charged with serious felonies, who had no viable defense to raise at trial, that they should hire a private attorney in order to maximize their chances of getting a favorable plea offer. It was not that my mentor was trying to avoid another client on his case load; he legitimately cared about the wellbeing of these defendants and was giving them solid advice.

It was not until several years in private practice that I finally discovered why private attorneys tend to perform better in plea negotiations than public defenders, and I can tell you it has nothing to do with prosecutors feeling sorry for defendants who shelled out money for their own defense. It comes down to several factors, several of which involve basic psychology and group dynamics. In many counties, public defenders are in a constant state of war with the DA’s Office. They are constantly in trial, because they represent a lot of defendants whose only viable option is to go to trial. Public defenders must also constantly litigate pre-trial motions and take appeals to the Superior Court. All of these battles can cause prosecutors to resent public defenders, even though they are just doing their jobs. And if a public defender consistently wins at trial, as I did, the resentment is even stronger.

Prosecutors see themselves as the good guys. If they lose a trial, then the criminal justice system failed. Also, trial lawyers have competitive personalities, and it is a blow to one’s pride to lose. So if I won three or four trials in a row as a public defender, the prosecutors I tried these cases against were not exactly in the mood to extend generous plea deals. The next time they had a case where my client had no viable defense, they would make a harsh offer and refuse to back off. Conversely, if it was clear I had a chance to win at trial, then I would obtain favorable plea deals because the Commonwealth did not want to lose at trial. Yet as a public defender, I could rarely get good plea offers based upon mitigating factors related to my client.

The presence or absence of mitigating factors is another reason why private defense attorneys tend to get better deals. Defendants who have the resources to hire a private attorney are also more likely to have mitigating factors than defendants who cannot afford an attorney. Mitigating factors are anything, which make a crime “less bad” than a generic version of the same crime or make a defendant “less bad” than a generic version of a defendant charged with the same crime. Private clients are more likely to be in college or have graduated from college, are more likely to have served in the military, are more likely to have a stable work history, are more likely to have friends and contacts who can write letters of support on their behalf, and are less likely to have a prior criminal record.

Lastly, I learned early on in my career that each defense attorney has a finite number of favors he or she can ask of prosecutors. The prosecutors are not keeping track of favors; this is all on a subconscious level, but it is still very real, and this give and take applies to any group dynamic situation, from multinational corporate bigwigs to illiterate hunter-gatherers. You cannot expect a prosecutor to agree to an exceptionally lenient sentence in every case, otherwise, such sentences are no longer lenient, but the new normal. Thus, a defense lawyer must be very strategic concerning the timing of and nature of favors. If he asks for too many, he is not getting any, and if he asks for a big favor in one case, then another client might not be getting a favor in the near future.

So how does the finite number of favors possessed by each defense attorney relate to the difference between public defenders and private attorneys? Quite simply, public defenders have a much larger case load than private defense attorneys at any given time. I had about four or five times as many clients as a public defender as I do in private practice. Thus, a defense attorney can ask for favors for a higher percentage of his clients. Also, not every lawyer has the same number of available favors. Those with a better relationship with the DA’s Office are generally going to be able to get better plea deals than those who are routinely vexing and annoying the DA’s Office, and as discussed previously, public defenders are often forced to take cases to trial, file pretrial motions and litigate appeals, which can strain their relationships with prosecutors.

Now that I am in private practice, I get plea agreements, which I never would have gotten as a public defender. The simple reasons are that I am no longer in a constant state of war with police and prosecutors and I now represent a lot more clients with strong mitigating factors and far fewer aggravating factors related to both the facts of their cases and who they are as people. That being said, not all private attorneys are necessarily going to get better plea offers than public defenders. Private defense attorneys who file frivolous motions, make frivolous arguments, routinely take cases to trial with no viable defenses or who are obnoxious are not going to get good plea offers, and consequently, one is far better off with a public defender than a private attorney, who is reviled by judges and prosecutors.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, home of Penn State University. He spent five years as a public defender in Pennsylvania before entering private practice.

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