Just as in other negotiations, such as those of a buyer and seller in a real estate transaction, there are strategies involved in plea bargaining.
Overcharging as a Prelude to Plea Bargaining
Prosecutors often initially charge defendants with more serious or multiple offenses, expecting to reduce or drop some later as bargaining chips. Because a great many plea bargains occur when the prosecutor agrees to drop one or more of the charges facing a defendant in exchange for a guilty or no contest plea, prosecutors tend to charge high in the beginning.
Example: Officer Rhett Cutler stopped Charlotte O’Hara for an unsafe lane change. While writing the ticket, Officer Cutler spotted what looked like a packet of illegal drugs on the back seat. O’Hara was arrested and ultimately charged with possession of illegal drugs for sale. By charging O’Hara with possession for sale, the prosecutor leaves wiggle room to drop the charge to “simple possession” in exchange for a guilty plea if the circumstances warrant the lesser charge.
Does Everyone Get the "Standard Deal?"
For many common offenses, prosecutors in a given courthouse have worked out what is, in effect, a “price list,” setting out the typical sentences for different offenses. For example, in one area, it may be the prosecutors’ practice to uniformly reduce all first-time DUI (driving under the influence) offenses in which blood alcohol tests reveal a marginal or borderline level to a lesser offense, such as reckless driving. And, judges may hand down uniform sentences pursuant to the standard deals.
But not everyone gets the standard deal. Sentences may differ from case to case depending on a number of factors, such as:
- whether the defendant has any prior convictions (“priors”)
- the manner in which the offense was committed, and
- how strong the prosecution’s case (evidence) is.
A comprehensive study of plea bargains, conducted in the mid-1980s, found that defense lawyers also look for specific characteristics of the defendant that may be used to argue for leniency in any given case. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985.)
One defense lawyer described plea bargaining as follows:
“Everyone in the system knows roughly what a given case is ‘worth.’ By balancing the seriousness of the crime and the defendant’s record (how much time the prosecution wants the defendant to do), against the strength of the evidence and the skill of the defense lawyer (how likely the prosecution is to get a conviction), a specific deal is arrived at.” (How Can You Defend Those People: The Making of a Criminal Lawyer, James S. Kunen (McGraw-Hill).)
Finding out what the standard deal is
Standard deals are typically not written down anywhere. Defense lawyers have to figure out what the “going price” is in a particular jurisdiction for the crime the defendant is charged with. Lawyers often find out by asking around among their colleagues. Also, some public defender offices keep internal records that they may share with private defense counsel. Because lawyers tend to be clannish, it can often be very difficult for a self-represented defendant to learn about a standard deal. The best place to start, however, even for a layperson, may be a local public defender.
Influencing the deal
A number of other factors may influence particular plea bargains, including:
- where the case is
- what court the case will be heard in and how congested that court’s calendar is
- which prosecutors are in charge and what their reputation is, and
- which judge will preside over the case and how lenient or tough she is.
Good defense lawyers should know this “lay of the land” information. Defense lawyers who are not personally familiar with these details tend to call and rely on colleagues who are more familiar with the local scoop. Such local factors can be critical. If the judge has a reputation for leniency, for instance, the defense lawyer may be able to get a better deal out of the prosecutor than if the judge has a get-tough reputation. Defendants also tend to find themselves in stronger bargaining positions when their cases are to be heard in busier courts, such as those in large, metropolitan areas, where many judges’ (and prosecutors’) foremost concern is to get through their backlog.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.