The Pillars of Justice: Prosecutors vs. Defense Attorneys in the U.S. Legal System

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Paul Lewis Hayes was accused of passing one forged check for $88.30. The prosecutor offered to recommend five years in prison for a guilty plea, and warned that if Hayes refused he would go back to the grand jury for an indictment under the Kentucky Habitual Criminal Act. Hayes refused, and because of two prior felony convictions, his conviction at trial carried a mandatory sentence of life imprisonment.

The Supreme Court held that the threat was legitimate bargaining, not vindictiveness. The Constitution forbids a State from punishing someone for challenging a conviction. A hard plea offer is not punishment.

Hayes shows the shape of the system. The two decisions that decide a criminal case are made before any jury is picked: which charge a prosecutor files, and what that prosecutor offers the defendant to avoid a trial. Almost nobody reviews either one.

Someone picked the charge, and it wasn’t the judge

Charging is discretionary, and the rulebook says so. The Justice Department’s manual tells a federal prosecutor to charge when the evidence will probably be sufficient to obtain and sustain a conviction. Three grounds justify declining anyway: no substantial federal interest, prosecution available in another jurisdiction, or an adequate non-criminal alternative to prosecution.

Read that twice. The same evidence supports charging a person and declining to charge that same person.

Declining is ordinary. In fiscal 2023, United States attorneys declined to prosecute 26 percent of matters concluded, and property fraud was declined most often, at 54 percent.

Most cases end with a signature

In fiscal year 2024, of the 61,678 federal cases reported to the United States Sentencing Commission, 59,922, or 97.2 percent, were resolved by guilty plea and 1,756, or 2.8 percent, by trial.

State courts run the same way. In Bureau of Justice Statistics (BJS) data on felony defendants, 54 percent were convicted of a felony and 12 percent of a misdemeanor, and nearly all convictions were the result of a guilty plea.

The Supreme Court agrees, in borrowed words: the American process is a system of pleas, not a system of trials, and plea bargaining is not an adjunct to criminal justice; it is criminal justice.

Trial isn’t the system. It’s the rare event the system is priced against.

What it costs to refuse the offer

The price is written into the charge. Under the federal drug statute the largest quantities carry a prison term that may not be less than 10 years, and one prior serious drug or violent felony conviction lifts that floor to not less than 15 years.

Whatever a judge thinks of the defendant, the charge has already set the lowest sentence that judge can impose.

So how big is the gap? The National Association of Criminal Defense Lawyers (NACDL) went through Sentencing Commission data for 2015. The average fraud sentence was three times as high for defendants who went to trial as for those who pled guilty, and for burglary, breaking and entering, and embezzlement nearly eight times as high.

That is the defense bar’s own number, built from the government’s data. NACDL wants to eliminate the coercive forces in plea bargaining and restore true freedom of choice for criminal defendants.

What the judge checks before accepting a guilty plea

Quite a lot, on paper. The judge must address the defendant personally in open court, confirm the defendant understands the rights being given up, determine the plea is voluntary and not the product of force or threats, and find a factual basis for it.

Clark Neily writes that prosecutors are lavishly equipped with various tools to induce defendants to waive the right to make the government prove guilt and simply condemn themselves instead.

The lawyer, and when the court must appoint one

After the Florida courts turned him down, Clarence Earl Gideon sent the Supreme Court a petition in pencil, on lined prison paper, claiming he was a pauper unconstitutionally denied a lawyer. The National Archives holds the petition.

He won. Governments hire lawyers to prosecute and defendants with money hire lawyers to defend, which the Court called the strongest indications that lawyers in criminal courts are necessities, not luxuries.

Misdemeanors count too, but the trigger is the cell, not the label. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, petty or felony, unless represented by counsel at trial.

If the court will not jail the defendant, it need not appoint anyone.

Proving poverty, and the bill that can follow

There is no national test for being too poor to hire a lawyer. Louisiana presumes indigency for a defendant on public assistance, in public housing, or earning less than 200 percent of the Federal Poverty Guideline. Indiana lists factors and gives judges no guidance on how they should weigh those factors.

Same income, different state, different answer.

Appointed does not always mean free. National Public Radio’s 2014 survey with the Brennan Center for Justice found that in at least 43 states and the District of Columbia defendants can be billed for a public defender. In Allegan County, Michigan, one defendant was told to pay $1,000 in “court costs” after pleading guilty, and testimony in his challenge showed that $500 of it reimbursed the program that had paid for his court-appointed attorney.

The Supreme Court allows it with conditions: defendants with no likelihood of repaying are not even conditionally obligated to do so.

So a defendant may be billed later, but not while still unable to pay.

How many cases one defender can carry

Carnissa Lucas-Smith came back to her hometown of Seattle after law school to work as a public defender, and left after four years for a nonprofit. She said the volume of cases she was assigned played a role in the decision. At one point she was carrying 170 cases.

Too many? Until recently the answer rested on estimates adopted in 1973, criticized for giving equal weight to a burglary, a sexual assault, and a homicide.

A 2023 national workload study replaced them, pricing each case type in attorney hours and converting that into a yearly caseload.

Now the volume. BJS’s census of public defender offices counted more than 5.5 million cases in 2007 and more than 15,000 full-time equivalent litigating attorneys.

Hold those two facts together. One lawyer’s year is 36 mid-level felonies, and 5.5 million cases arrived for roughly 15,000 lawyers.

The American Bar Association (ABA) is blunt about the remedy. Where the workload means the lawyer cannot provide effective and competent representation, that lawyer is obligated to refuse appointment.

The evidence the state has to hand over

John Brady admitted taking part in the crime but said his companion Boblit did the actual killing. A statement Boblit gave on July 9, 1958, admitting the actual homicide, was withheld by the prosecution, and Brady learned of it only after he had been tried, convicted and sentenced.

The rule that carries his name is one sentence: suppression of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

Good faith is no defense. Whether the violation wins the defendant anything is a different question.

Federal policy goes further than the Constitution requires: the Justice Manual provides for broader disclosures than required by Brady and Giglio.

When it stays in the file

Michael Morton’s lawyers, shortly before his release, found in the sheriff and district attorney files a transcript of his mother-in-law telling a deputy that the couple’s 3-year-old son saw a monster kill his mother. The boy said his father wasn’t home. Morton had been in prison for nearly 25 years. The prosecutor at his 1987 trial, Ken Anderson, had since become a state district judge.

Anderson was sentenced to nine days in jail and surrendered his law license to settle a criminal contempt charge and a State Bar of Texas case.

That outcome is rare. To undo a conviction, a defendant must show a reasonable probability of a different result, meaning evidence that undermines confidence in the outcome of the trial.

A defendant can prove the state hid something helpful and still lose. The question is whether the rest of the trial holds up without it.

How often is something hidden? Across 2,400 documented exonerations, the National Registry of Exonerations found official misconduct in 54 percent, concealed exculpatory evidence being the most common form at 44 percent.

Who a prosecutor answers to

Start with who cannot touch them. In initiating a prosecution and presenting the State’s case, the Supreme Court held, a prosecutor is immune from a civil suit for damages under the federal civil rights statute.

John Thompson spent 18 years in prison, including 14 years on death row. He sued the district attorney’s office for failing to train its prosecutors on disclosure. The Supreme Court held that a pattern of similar violations is ordinarily necessary to show deliberate indifference, and Thompson had not proved one. In plain terms, the office had to have notice that its training was deficient and keep it anyway, and one kind of mistake repeated over time is what gives that notice.

Bar discipline is the other route, and it is narrow. Reviewing rulings from 2004 to 2008 in five states, the Prosecutorial Oversight coalition found 660 cases where courts confirmed misconduct, and only one prosecutor from these cases was disciplined.

Which leaves the voters. Counting 2,442 elected prosecutors in 2019, the Reflective Democracy Campaign found that prosecutors run unopposed 80 percent of the time.

Anderson losing his license is what accountability looks like when it arrives. It is not what it usually looks like.

When the defense lawyer blows it

Galin Frye was charged with driving on a revoked license, a felony carrying a maximum 4-year prison term. The prosecutor wrote to his counsel offering to reduce the charge to a misdemeanor with a 90-day sentence; counsel never passed it on, the offer expired, and Frye was sentenced to three years in prison.

Two things have to be shown: that counsel’s work fell below an objective standard of reasonableness, and that it prejudiced the defense. Judicial scrutiny of a lawyer’s performance must be highly deferential.

The second is the wall. Showing the lawyer was bad is not showing it changed the outcome.

The fight over refusing to charge whole categories

A memo from Philadelphia District Attorney Larry Krasner told line prosecutors to stop charging marijuana possession regardless of weight, and to state at sentencing what prison costs, using $42,000.00 per year to incarcerate one person.

Signers of a joint statement after Dobbs wrote that prosecutors decide every day how to allocate limited resources and which cases to prosecute, and committed to refrain from prosecuting those who seek, provide, or support abortions.

The objection is not that discretion exists. It is that discretion is meant to be used one case at a time. The National District Attorneys Association’s standards say societal rather than group interests should be paramount, and that a prosecutor should seek to reform criminal laws when necessary.

Change the law, in other words, rather than quietly stop enforcing it.

A City Journal essay presses the safety case: local prosecutors have upended the system by diverting more cases, seeking detention less often, and adopting policies of non-prosecution for whole categories of crimes. That is a pattern of policy change, not a study of what it did to crime.

Some states answered with removal. A 2023 Texas statute made it official misconduct for a prosecuting attorney to adopt or enforce a policy of refusing to prosecute a class or type of criminal offense under state law.

Florida went through the governor. The order suspending Hillsborough County State Attorney Andrew Warren called his blanket nonprosecution policies incompetence and neglect of duty under the state constitution.

A federal district court found the opposite on the facts: Warren’s office had no blanket policies prohibiting discretion. That court still would not reinstate him, concluding Warren would have been suspended even absent his protected activity. The Eleventh Circuit vacated that ruling and sent the case back for the district court to reconsider it. Warren’s term ended before that could happen, and the appeals court then vacated its own opinion and the district court’s judgment and ordered the case dismissed as moot.

Both camps want discretion. They disagree about whether announcing it in advance is candor or nullification.

When there is no defender at all

In 2016, Missouri Public Defender Michael Barrett invoked Section 600.042 of Missouri law and appointed Governor Jay Nixon to defend an indigent man. That statute lets the director of the state public defender system delegate the legal representation of an eligible person to any member of the state bar of Missouri.

Cole County Circuit Judge Patricia Joyce ruled that a different statute overruled the one Barrett cited and relieved the Governor from the appointed case. The same day, Nixon moved to fill three vacancies on the Public Defender Commission.

It was an unusual move. It was also nearly the only lever Barrett had.

Courts have supplied a harder one. On a joint petition from Oregon defendants jailed without lawyers, the Ninth Circuit affirmed an injunction requiring counsel be provided within seven days of the initial appearance, failing which they must be released from custody subject to reasonable conditions.

The Oregon Supreme Court decided State v. Roberts on February 5, 2026. When an eligible defendant goes without appointed counsel after arraignment for more than 60 consecutive days in a misdemeanor case, or 90 in a felony case, the charges ordinarily must be dismissed. The dismissal is without prejudice, which ordinarily allows the state to refile the charges later.

The gap is measurable and it moves. Oregon had more than 4,000 defendants without counsel at the April 2025 peak; as of August 31, 2026, that number had fallen to 1,104.

The fix is contested. The revised ABA principles put independence first, urging that a nonpartisan board or commission should oversee the provider, outside the control of judges and elected officials.

Neily argues that overcriminalization has come to make criminals of everyone, meaning that prosecutorial discretion reigns supreme.

What the defendant alone decides

Four decisions are reserved for the client: whether to plead guilty, waive a jury trial, testify, and forgo an appeal.

Robert McCoy went to the Supreme Court to add a fifth. He vociferously insisted on his innocence, and his counsel, Larry English, told the jury McCoy committed the three murders anyway, reasoning that conceding guilt would avoid a death sentence. The Court held that the choice to assert innocence belongs to the defendant.

One more is worth knowing early. Where a lawyer fails to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed, even if the plea agreement contained an appeal waiver.

The charge and the offer belong to the prosecutor. The plea, the jury, the testimony and the appeal belong to the defendant, and those are the choices the record will show the defendant made.