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Practical Matters of the Law: Plea Bargaining, What's the Deal?

September 7, 2017



Dang, I messed up, got arrested, the evidence against me is strong and I hate it. How do I get out of this?

One aspect of criminal justice administration that is smothered in notoriety, confusion, and misapprehension, is plea bargaining. It shouldn’t be. Plea bargaining, when done with the assistance of a good attorney, is our friend.


First, plea bargaining is entirely necessary, otherwise our court system would breakdown under a backlog of many thousands of cases needing to go to trial. About 95% of all cases are pleaded out. Only a small portion proceed through the lengthy and expensive process to full trial.


Is this good? Yes. It usually doesn’t take a trial, with a jury, a judge, clerks, bailiffs, investigators, witnesses, and a set of attorneys, weeks or more to figure out what happened and what ought to happen as a result. Just a couple of people – the state’s attorney and a defense attorney - can usually do a pretty good job of it over a few phone calls, a quick meeting, and a judge’s signature.


Is justice served by plea bargaining? Yes. Some have argued that plea bargaining undercuts justice by diverting defendants from the crucible of trial. This assumes the lengthier, more costly process of having a trial would result in a different, better justice. Small jurisdictions have tested this hypothesis by taking every case filed to trial.


Did different results occur? No. Studious types from around the world swooped in and several hundred Master’s Thesis’s on the subject were written, but what did they find? The same outcomes occurred whether plea bargaining was used or not. When cases that could have been easily pleaded out of the system early on made it to trial, judges and prosecutors used their discretion to reduce charges and sentences anyway, and when left to juries, many juries refused to crush non-violent, low-threat defendants. Bottom line? All the things we hear complained about in plea bargaining processes everywhere continued to happen under the far more expensive and time consuming alternative.


Plea bargaining quickens the pace of justice. Why wait several months or even a year or more to go through a trial when you can plead out, get your punishment over with, do your community service, maybe pay restitution, and get on with life? And what about innocence? It happens. In the plea process the defense can often make the case to the state’s attorney as good or even better than at trial that the defendant is not guilty beyond a reasonable doubt. A prosecutor unsure of success at trial will often be open to alternatives to clear his or her stack of files.  Consider the time and resources saved when a tough case is resolved early, and how much less the negative impact of just being charged with a crime affects the defendant by resolving the issue in months rather than years.


Finally, plea bargaining offers certainty to an otherwise fickle system. The outcome and sentence, if any, is agreed to by both parties before it is official. In a trial both sides get what they get. Certainty is usually preferable.


So please be convinced that plea bargaining is good and it is here to stay. Now what does that mean to you, someone charged with a crime it looks like you are guilty of? Shortly after your arrest, your defense attorney is going to have a very serious talk with you about plea bargaining. With me, that will happen the first time we meet. I want to hear what you expect the result of your case to be, what you are willing to tolerate punishment-wise. Theoretically, in plea bargaining, everything is on the table from dropped charges, to penalty modification, to diversion, or to trial if all else fails, but we need to decide where we’re trying go early on if we are going to work most effectively to get there.


So how does it usually go? Once your defense attorney has a sense of your goal – adjusted to reality of course – he or she will contact the state’s attorney and haggle. In some jurisdictions, offers from the state come to the defense attorney along with discovery materials usually a few weeks after arrest – i.e., here is the evidence against your client and here is what I’m offering you if you want to plead out. These offers are usually not very good, often a little insulting, but hey, they are a start.


Once an offer is in hand, your attorney will usually counter-offer and so on until the state’s offer seems reasonable considering the evidence, the nature of the crime, and the defendant’s stated goal, or it may become clear that no acceptable offer is forthcoming. In that case, maybe trial is a better deal, or at least moving down the track to trial may change the state’s math. In any case, your attorney must present all offers to you the defendant, and only you can decide whether to take the plea.


Pleas are generally of three types in some combination. The first is reduction of charges, for instance, from a charge of aggravated battery to a charge of simple battery. Aggravated battery is a felony, which carries with it significant negative impacts for a long time. Simple battery is a misdemeanor – it's not so bad.


The second type of plea is a reduction of punishment, for instance, a year’s probation rather than a month in jail. You see these done all the time on TV where murder cases are prevalent. The defendant pleads guilty to avoid the death penalty or life without parole and gets life instead.


The last two are called diversion and adjudication withheld, and they get special explanation here because they are especially cool. In a diversion, the prosecutor withholds moving forward with the case on the condition that the defendant accomplish certain things, such as taking a class, not getting in trouble again for a period of time, that sort of thing.  The costs of any prescribed classes are at the expense of the defendant, but if all goes according to plan, at the end of the agreed to period, the charge is dropped. 


In 'adjudication withheld,' a largely Florida option, defendant pleads no contest and the judge withholds adjudication, meaning everything happens except ruling the defendant guilty of a crime.  The judge will order that the defendant do certain things, such as probation, classes, community service, and pay the court fees and any fines.  The benefit for the defendant is that no conviction results.  This option as well as diversion are often used for less serious, first time offenses, although that all depends on the circumstances. 


Diversion and adjudication withheld are especially helpful to those who really cannot afford to have a dinged-up permanent record, such as a military member, a medical professional, a police officer applicant, that sort of thing. 

The concept is that this event was a one-off by a normally upstanding citizen, the person learned their lesson about the second hour they were sitting in the holding cell, and further destruction to their record and opportunities is unwarranted and undesirable. This is where you try to collect on having been a good boy or girl for so many years.


Should you take a plea? What I tell my clients is to consider all of them but only take one when you are ready. You are usually ready when the offer is so sweet you can’t wait to sign it and get it over with – it happens - or the pain of proceeding toward trial so outweighs the pain of the offer you can’t risk missing out on it.    

I’ve had clients refuse any plea offers. This is the most risky option, but if you believe you are innocent and that the evidence is insufficient to prove you wrong, that is what you have to do to be found not guilty assuming we can’t convince the state to drop the case. Others couldn’t wait to plead out and I felt like I was reigning them in.  Their desire to avoid the stress of court appearances, even for simple hearings, was more compelling than their long-term record. Each client and case are different.


Plea bargaining is a vital part of our criminal justice system. For all the hand-wringing and editorializing about its virtues, it is here to stay. Plea bargaining provides the best opportunity for efficient justice and for the criminal defendant and their dedicated attorney to work out the best path of recovery from an arrest event.


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