Plea Bargain or Trial? Depends on the Job Market

How justice is applied in criminal cases, such as drug trafficking, can depend on a number of obvious factors, including the severity of the crime, the costs involved in going to trial, and oftentimes the defendant’s gender and race. A factor that is completely unexpected, however, is the condition of the local labor market.

Richard Boylan

New evidence obtained by a Rice economist suggests that some U.S. attorneys’ decisions to take cases to trial versus negotiating a plea are influenced by the average attorney salaries in a particular jurisdiction. “Some lawyers who seek jobs with the federal prosecutor’s office do so in order to gain trial experience they later can parlay in the private sector,” explains Rice economist Richard Boylan. “As a result, it’s often districts where the private sector offers high salaries that assistant U.S. attorneys are more likely to try defendants involved in drug trafficking rather than discuss a plea.” Conversely, Boylan and his colleague Cheryl Long, from Colgate University, found that in districts where private salaries are lower, the likelihood of a plea is higher.

This raises questions of fairness for defendants charged with drug-related crimes in regions of the country where lawyers’ salaries in private firms are high, Boylan says. Defendants in such districts may receive longer prison sentences because federal prosecutors in those districts may not consider any reasonable pleas. “They may prefer to gain the experience of going to trial,” explains Boylan.

These regional differences are significant, claim Boylan and Long, because most lawyers who join a private firm immediately after leaving the government remain in the same district where they served as assistant U.S. attorneys. Among the 264 individuals for whom they had such information, the researchers found that 67 percent remained in the same district and 85 percent within the same state, further supporting their contention that the local labor market is a key factor in whether a district’s plea rate is higher or lower.

Boylan and his colleague based their findings on a review of all federal drug-related cases prosecuted between 1994 and 1998. The data used for the study was limited to 8,769 cases in which the defendants were suspected of drug trafficking and evidence seized during the arrest was documented. They also documented the career paths of more than 1,000 private-practice lawyers who had prior experience as federal prosecutors.

“Assistant U.S. attorneys get more trial experience than do lawyers in private practice, particularly in the top law firms where the senior partners try most of the cases,” Boylan explains. “As we found, many federal prosecutors seek government employment in regions where private lawyers are paid high salaries to gain trial experience that will help acquire jobs in those higher-paid labor markets.”

Boylan also notes that districts where private salaries are high tend to attract lawyers of higher ability as well. “Essentially,” he says, “districts that offer attractive opportunities for lawyers in the private sector enable the prosecutors’ offices in those districts to attract more qualified attorneys.”

Boylan and Long’s findings were published in “Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors,” which appeared in the October 2005 issue of the Journal of Law and Economics.