WHAT’S THE DEAL WITH PLEA BARGAINING?

My favorite episode of Perry Mason is the one in which Perry reaches a deal with the DA and his client takes it instead of going to trial. A close second is the time Perry requests a continuance because he has to be in another court.

The reality is that few criminal cases ever go to trial. Many are resolved through diversionary programs (such as AR) or nolles. The bulk of criminal cases are resolved through guilty pleas. As we know, a criminal defendant is innocent until proven guilty. After a defendant his arraigned, he enters an initial plea, which is usually “not guilty,” and the case proceeds. The plea is a decision that only a client can make. At some point, barring a program or a nolle, the State will extend an offer for a guilty plea: if the defendant changes his or her plea to guilty (or nolo contendere or Alford pleas), the State will recommend a certain punishment and/or will drop or lower some of the charges. The court might even weigh in with what it will sentence the defendant should he plead out. If the defendant rejects the offer, the case could be set down for trial. An agreement can still be reached at any time but we’re dealing with the basic contract principles of offer and acceptance. The State is under no obligation to extend a new offer or to accept a defendant’s counter-offer (back to contracts class, a counter-offer is a rejection). The defendant can plead guilty anyway and leave the sentence up to the court without an offer from the State–this is an open plea–but it is only for the charges before him. Once the court finds probable cause for an offense, the defendant can be brought to trial for it. Only the State decides what to charge a defendant with.

What can a defendant do if he or she does not like the State or court’s offer? Take the case to trial. If only it were that easy. Although that decision is solely the client’s, a criminal defense attorney must advise him or her in that decision and make a recommendation. A poor recommendation to try a case or plead out may constitute ineffective assistance. I enjoy trying cases but my clients’ decisions aren’t about my fun. Their lives and liberty are at stake, as well as the people they support and depend on. For someone who is sitting in jail unable to bond out, the prospect of getting hammered after a loss at trial is often not worth the risk when a plea for lesser charges can get him out much faster. This happens a lot in drug cases wherein the statutes expose a defendant to lengthy prison terms. Other times preconfinement credit and split sentences can free someone almost immediately as long as he pleads to something. Sometimes the punishment isn’t the time but the offense–becoming a felon and suffering all of the ensuing collateral consequences.

All of the scenarios, charges, evidence and consequences are what we talk about with clients, sometimes in the courthouse lockup. I never like telling a client to stop fighting; to give up his rights and go to jail. What I like less is when a client makes a poor decision. So much of this work isn’t staying out of jail but getting out of jail.