William & Mary Law Review


Gabriel J. Chin


In some cases, lawyers are, and should be, permitted to conclude plea bargains to which their clients have not agreed. Because clients bear the consequences of a conviction, ordinarily, clients should choose between a plea and the possibility of acquittal at trial. Further, clients have the right to decide that even though conviction is practically certain, moral or political reasons warrant insistence on a trial. But some clients have the goal of minimizing incarceration, have been offered reasonable pleas, face substantially greater sentences if convicted after trial, have no plausible ground for acquittal —and nevertheless decline to plead guilty. They may do so because they are cognitively unable to make a decision or complete a plea colloquy, or because they are holding out for a miracle. The traditional understanding of lawyer-client decision-making authority would lead to the conclusion that the client has the absolute right to reject a plea, even if it inevitably makes the client worse off, on her own terms, by increasing the imprisonment she is trying to avoid. This Article proposes that the Supreme Court’s decision in Florida v. Nixon leads to a different conclusion. In Nixon, a unanimous Court held that defense counsel could tell the jury in an opening statement that a defendant was guilty in hopes of improving the client’s position for sentencing. The principle of Nixon has been expanded in lower courts to cover a range of issues and contexts. If Nixon allows a concession of guilt in the inchoate hope of obtaining a more favorable sentence, it should also allow a concession to obtain a specific agreement. Nixon does not extend to situations where the client actually objects to defense counsel’s action. But short of actual client objection, defense counsel should be able to assist a client in achieving her goal of minimizing incarceration or avoiding execution even if that means making concessions on issues that were once thought to require personal action by the client.