How Plea Bargains Get Made

Many cynics argue that like laws and sausages, plea bargains are best made out of public view. Read on and make up your own mind.

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In a typical plea bargain, the defense lawyer and prosecutor confer, and one or the other proposes a deal. The negotiations can be lengthy and conducted only after both parties have had a chance to research and investigate the case. Or, they can be minute-long exchanges in the courthouse hallway. Here's an example of the latter.

Example: Deputy Public Defender Cooper meets Assistant District Attorney Van Lowe in the hallway on their way into the courtroom. The following interchange takes place.

P.D. “Mornin’, V.L. Got a good offer for me in the Reback case?”

D.A. “That’s the assault case?”

P.D. “Yeah. Honor student, nice guy, got into a scrap with another guy at a fraternity party, both were pretty loaded. No record, not even in juvie. He’s been in since last night. How ’bout time served, probation, and completion of an anger management course and substance abuse counseling?”

D.A. “Fine.”

P.D. “Okay, what about the Bremer case?”

It is quite likely that a plea bargain in a misdemeanor assault case would take place this quickly and this informally, especially when the deal is between a prosecutor and court-appointed attorney who work with each other every day and trust one another. “Time served” means that the jail time will be just what the defendant has already spent in jail—in this case, overnight. Of course, the deal is not final until the defendant Reback agrees to it.

Who Decides Whether to Accept the Plea?

The decision about whether to accept the plea bargain ultimately rests with the client. For practical purposes, however, defense counsel often urge defendants to accept deals, convincing them they’ll get a much harsher sentence if they go to trial (and they’re often right). And defendants tend to take the deals that their attorneys recommend.

Plea Bargaining and the Judge's Role

Much of the time, plea bargaining negotiations take place privately between the defense lawyer and prosecutor, outside of court. The judge has no formal role until the plea is offered in open court. In some courts, however, the judge is actively involved in pushing both sides to negotiate, even facilitating negotiations in the judge’s chambers (office). On occasion, the judge will provide guidance to the defense and prosecutor by indicating what sort of a sentence would be acceptable.

Charge bargaining

It is up to the judge to impose sentence in a criminal case. On the other hand, it is up to the prosecutor to decide what charges to bring; the judge has no authority in that sphere except to dismiss a charge that the judge feels is wrong. This means that a prosecutor may agree to change the charges or even drop some charges in exchange for the defendant’s plea, and the judge can’t stop it. However, if the plea bargain involves the type of sentence to be imposed by the judge, the prosecutor cannot guarantee the result without the judge’s agreement (see below).

Sentence bargaining

In many courts, prosecutors agree to recommend the bargained-for sentence without obtaining any explicit agreement beforehand from the judge. But the prosecutors know from past experience and the judge’s reputation whether the judge can be counted on, as many can, to rubber-stamp the prosecutor’s recommendation. If the judge rebels or simply doesn’t follow the track record, and seeks to impose a harsher sentence than the one the defendant was led to expect, the defendant is usually allowed to withdraw the guilty plea. (If the case ultimately goes to trial, the jury will never find out that the defendant had sought to plead guilty.) But if the prosecutor has made it clear that the judge might not accept the recommendation, and the defendant pleads guilty anyway, the defendant may be stuck with the judge’s sentence. In other words, sometimes bargaining for the prosecutor’s recommendation will produce a sure result; other times, it simply means that the defendant can test what the judge is willing to do; and still other times, it guarantees nothing at all and risks a harsh sentence.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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