For judges, a primary incentive to accept plea bargains is to move along their crowded calendars. Most judges simply don’t have time to try every case that comes through the door. Prosecutors face similar pressures. Plea bargains may also benefit other parts of the system.
Some criminal cases can take a year or more to process through the trial court. The more cases that go to trial, the more crowded a judge's calendar becomes. Clogged calendars lead to backlogs and speedy trial concerns. Judges need to move cases along to protect the constitutional rights of defendants and all citizens. Every person has a right to access justice. And a seriously clogged calendar delays justice for everyone.
For a prosecutor, the judge’s concerns about clogged calendars are the prosecutor’s concerns as well. To keep judges happy (and keep the machine rolling), prosecutors must keep cases moving. Prosecutors are, of course, also concerned for their own calendars.
Clogged calendars mean that the prosecutor’s staff is overworked. Plea bargains lighten the staff’s caseload. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor’s budget. With today’s cutbacks on already slim resources, prosecutors will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains.
Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a slam dunk. The prosecution may wage a long, expensive, and valiant battle, and still lose the case.
Plea bargains also allow prosecutors to protect government informants. Many informants have criminal records. If a case were to go to trial and the informant were to testify, the defense in many cases could impeach the informant with their past criminal history. But in the context of a plea bargain, the prosecution doesn't have to turn over an informant’s criminal history to the defense. (U.S. v. Ruiz, 536 U.S. 622 (2002).)
Plea bargains also allow prosecutors to offer good deals to a defendant who could help them in another case. For instance, they can offer a deal to someone who, though guilty, is prepared to give testimony about a codefendant or help resolve some other unsolved case.
Prosecutors may use plea bargains to circumvent laws they either don’t agree with or that are very unpopular. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor’s office may have an unwritten policy of giving all such offenders “offers they can’t refuse,” such as a $25 fine and 10 hours of community service.
Although more of a benefit to the system as a whole, plea bargains can ease the burdens on local jails (where defendants may be held pending trial) by quickly processing criminal cases and moving convicted defendants to prison or out on probation. A plea bargain can also mean shorter sentences for defendants, which eases the burden on local jails and state prisons housing convicted inmates.
Victims can also benefit from plea bargains, especially when a victim wants to avoid the stress of testifying and facing a perpetrator at a trial. A guilty or no contest plea is quicker and also tends to receive less publicity than a trial.
But not all victims are happy to see cases bargained away. Many victims are dissatisfied when defendants are allowed to enter plea bargains, feeling that the harm they suffered was disregarded and the defendants got off too easily.
As a result of the efforts of victims’ rights groups, laws in many states now allow victims to have a say in the plea bargaining process. Some states require that prosecutors consult with victims before entering into plea bargains. In other states, victims have a legal right to come to court and address a judge personally before the judge decides whether to accept a plea bargain. Still, a third possibility for victims in many states is to consult with the probation officer before the officer prepares the presentence reports that often influence a judge’s sentencing decision.
]]>For most defendants, the main benefit of plea bargaining is receiving a lighter sentence and/or a less severe charge than they might get if they go to trial and lose.
Example: Commander O.M. Pyre is charged with 20 counts of burglary after a spree of burglaries in his neighborhood. District Attorney Art Mills offers to drop the charges to two counts of burglary if Pyre pleads guilty right away. Pyre takes the deal because his sentence will be shorter and he’ll be eligible for parole earlier than if he were convicted on every charge at trial.
As the above example shows, the main benefit a defendant usually gets out of a plea deal is less time in jail or prison, and fewer convictions. But plea bargains can have many other benefits for the defendant. Here are some of them.
Defendants who are represented by private counsel can save a bundle on attorneys' fees by accepting a plea bargain. It almost always takes more time and money to bring a case to trial than to negotiate and handle a plea bargain.
Defendants who are held in custody—who either do not have the right to bail, can’t afford bail, or don’t qualify for release on OR—might get out of jail immediately after they plead guilty or no contest. The defendant might get out and be put on probation, or sentenced to community service. Or, the defendant might have to serve more time but will still get out much sooner than if they went to trial.
A plea bargain resolves the case much more quickly than a trial, which can reduce the stress of being charged in a criminal case. It can take months and sometimes a year or more before a case goes to trial. And trials tend to be much more stressful for defendants, who have to listen to witnesses give evidence against them, and wait until the end of the trial to find out their fate. But a guilty plea ends the case right away and provides a guaranteed result, which is usually less stressful.
In felony cases, some defendants who don’t stand a good chance at trial might want to plead quickly so they can move to prison rather than stay in country jail awaiting a trial. A move to prison can be a step up if the jail conditions are worse than prison conditions. And people in prison might have more privileges (like classes and more time outdoors) than people in jail awaiting trial. Also, when defendants go to prison after a plea deal, they know how long they’ll be in, and don’t have to spend what might feel like endless hours waiting around in jail for trial, not knowing what will happen.
Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offense looks a lot better on a defendant's record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction for driving under the influence (DUI) may carry mandatory jail time, whereas if the first DUI offense had been bargained down to reckless driving, there may be no jail time for a second DUI.
Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor has other benefits:
In addition, it’s often advantageous to reduce a felony that constitutes a strike under a three strikes law to one that doesn't.
Prosecutors may reduce charges that are perceived as socially offensive to something less offensive in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant's relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed in prison than if they’re convicted of an offense that doesn't carry the same stigma.
Avoiding publicity from a trial is often important to famous people, public officials, ordinary people who depend on their reputations to earn a living, and people who don't want to bring further embarrassment to their families. Pleading guilty or no contest limits how much someone will be in the public eye. While news of the plea itself may be public, the news is short-lived compared to news reporting of a trial.
Some defendants plead guilty to take the blame (or the "rap") for someone else or to end the case quickly so that others who may be jointly responsible are not investigated.
Depending on the crime, noncitizens who plead guilty can be deported after they finish serving their sentences. Pleading guilty to an offense that doesn’t trigger deportation can be a huge benefit of plea bargaining for people trying to avoid deportation.
Prosecutors benefit from plea bargains because they have far more cases than can possibly be tried. Crowded court calendars mean that the prosecutor's staff is overworked. Because plea bargains are much quicker and require less work than trials, they're easier on the prosecutor's budget.
Also, because there are far more cases than there is time to bring them all to trial, prosecutors have to be careful that cases aren’t dismissed for speedy trial violations.
Plea deals also give prosecutors a guaranteed conviction, whereas a trial can sometimes be a roll of the dice. Prosecutors’ conviction statistics are often important to their careers, especially if they’re elected to the position.
Depending on the case, a plea bargain can have disadvantages for the defendant, prosecutor, or both.
Plea bargains could lead some innocent defendants to plead guilty just to get out of jail quickly. Jail is pretty unpleasant and anxiety-producing, and people in jail often fear losing their job or their housing if they miss too much work. Also, a defendant who pleads guilty usually can’t appeal the conviction or sentence they receive.
Plea deals usually mean that the defendant is getting a break, and sometimes prosecutors are reluctant to let them off easy. Because prosecutors have too many cases to take to trial, they might agree to plea deals even when they think the defendant doesn’t deserve it. Prosecutors also have to answer to victims, who might feel cheated of their day in court and believe the defendant isn’t getting a long enough sentence.
This article contains excerpts from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>
Nolo contendere is Latin for “I do not wish to contend” or, more simply, “no contest.” Each state has its own rules of criminal procedure, and some states use the term "no contest," while others refer to "nolo contendere." We'll stick with "no contest" for this article going forward (it's shorter).
Regardless of what term is used, a defendant who enters a plea of no contest accepts their conviction and punishment but doesn't admit guilt.
A defendant might enter a no contest plea if the prosecution has a really strong case, and the defendant knows a conviction is likely. But, because a related civil case is also pending, the defendant doesn’t want to admit guilt. Admitting guilt in the criminal case will essentially serve to admit fault or prove liability in a related civil case.
Suppose Duke and Vince get into an argument-turned-fight. Duke fares better in the bout, but his "win" is short lived. Not only does Duke end up being charged with criminal assault, he's also sued by Vince for assault and battery in civil court. Vince is seeking monetary damages in the civil suit to pay for his hospital bills. If Duke decides to plead guilty in the criminal case, Vince gets a slam dunk in his civil case. Why? Because the standard of proof in a criminal case is beyond a reasonable doubt—a much more difficult standard to prove than the preponderance-of-the-evidence standard required in civil cases. So, if the burden is met in the criminal case, it’s met in the civil case. To avoid this result, Duke reaches an agreement with the prosecutor to plead no contest to the criminal assault charge. Vince will need to prove Duke was at fault in his civil case.
That result sounds great. Why do defendants even bother entering a guilty plea if they can plead no contest? For a few reasons.
First, pleas of no contest are not a given. In most states, defendants don’t have the right to enter a plea of no contest (like they do a guilty plea) without the permission of the judge, prosecutor, or both.
Part of the reason behind having a criminal justice system is for defendants to accept responsibility for their actions. Victims of crimes also deserve to know the defendant is being punished for causing them harm. Neither really happens with a no contest plea. Also, the criminal system is supposed to seek justice, not convictions. A defendant who’s innocent shouldn’t be convicted and punished.
Judges and prosecutors generally need to take into consideration whether enough evidence exists to justify a conviction and whether a no contest plea is in the best interests of justice.
Second, in some states, a no contest plea doesn’t avoid an admission of fault in a related civil case. Take California, for instance. California rules allow a civil plaintiff to introduce evidence of a defendant’s plea of no contest for any crime that could be punished as a felony. (Cal. Evid. Code § 1300 (2022).) If avoiding liability in a civil lawsuit is the defendant’s main goal, it might not make sense to plead no contest depending on the particular state’s law.
Finally, a no contest plea might not always turn out to be the best option for the defendant. Defendants who plead no contest give up their right to a trial and to have the prosecutor prove the case beyond a reasonable doubt, among other constitutional rights. Also, a judge may agree to the plea but take the defendant’s failure to accept responsibility into consideration when handing down the sentence.
Ultimately, varying and complex rules mean that you should consult a qualified criminal defense lawyer to understand the repercussions of any kind of plea in a given case and whether it's in your best interest.
]]>In many places, “open plea” refers to the defendant pleading without any promise from the prosecution as to what sentence it will recommend. Defendants sometimes reject offers and choose open pleas in the hope that they’ll receive a better sentence than they would under the prosecution's proposal.
Another, potentially less risky kind of open plea can arise pursuant to an agreement—where, for example, the parties agree that the prosecution will drop one or more charges, that the defendant will plead to the remaining charge(s), and that the prosecution won’t make any sentencing recommendation.
If you want to know about open pleas in your jurisdiction—and want to know whether entering one is a good idea given your circumstances—it's imperative that you talk to an experienced criminal defense lawyer. An attorney with experience in your area should be well suited to explain the law and give you advice. That lawyer may also have, or be able to get, an idea of what kind of sentence the judge would choose if faced with an open plea.
]]>If I turn down a plea offer and get convicted at trial, will the prosecutor ask the judge to impose more time than he specified in the plea offer?
When prosecutors offer a plea bargain to a defendant, they have presumably studied the case and the evidence, spoken with witnesses and victims, and decided on a fair and appropriate sentence. But defendants often reject bargains, and take their chances at trial. Yes, there is a risk that the prosecutor may end up recommending a harsher sentence than the one proposed as part of the plea bargain. Or, even if the recommendation remains the same, the judge may not follow it.
In some cases, a prosecutor's recommendation for more jail time than was originally offered will seem like a punishment for going to trial. In these cases, little is learned at trial that wasn't known when the plea was offered. For example, witnesses may testify just as they were expected to do, based on police reports and investigators' reports; and physical evidence may be admitted just as planned. Particularly when the defendant offers no defense, a trial might just be an enactment of what the lawyers knew all along. In these situations, there's little to defend a prosecutor's demand for a harsher sentence post-trial.
However, some trials amplify what's known about the crime and the defendant, which may lead the prosecutor to reconsider the appropriateness of the sentence tied to his original offer.
It's possible that the prosecution's changed recommendation was meant to punish the defendant for demanding a trial. But it's also possible that the evidence at trial went beyond what the prosecutor thought he could prove at the time he offered the bargain. For example, in the time between the offer and trial, new evidence may have come to light, and additional witnesses found.
Judges are generally free to impose the sentence they feel is just, even when there's a plea bargain. Typically, the prosecutor will follow the specifics of the offer, and ask for no more; and in some situations, judges are consulted before the plea is made official.
by: Sara J. Berman
Suppose you've been charged with reckless driving, a misdemeanor in your state. If you plead "no contest," will you have a conviction on your record—and can the no-contest plea be offered into evidence against you if you are sued in civil court?
A no-contest plea, known often by its Latin name "nolo contendere," has the same primary legal effects as a guilty plea. If you plead no contest to a criminal charge, you will have a conviction on your record, just as though you had pleaded guilty or been convicted after a trial.
A potentially big advantage of a no-contest plea compared to a guilty plea has historically been that a no-contest plea could not be offered into evidence in a civil case.
Let's say that your alleged reckless driving damaged a storefront. The owner of the store might file a civil complaint against you seeking to obtain a money judgment for the damage you caused to the building. If you plead guilty in the criminal case, the building owner might be able to offer that plea into evidence in the civil case to prove you are responsible for the damage. But if you plead no contest, the owner likely cannot offer that plea into evidence in the civil case. (Of course, the law in your jurisdiction will determine the rules.)
]]>Plea deals often make sense for both sides. The government doesn’t have the resources to try every case. Plus, it sometimes doesn’t want to run the risk of acquittal. Defendants, on the other hand, usually receive lighter sentences and/or end up with less serious charges on their records by agreeing to plead guilty (or no contest). Plus, paying a lawyer for representation through trial and sentencing can be quite expensive. (See Using a Private Criminal Defense Attorney.) On top of that, the trial process can be harrowing.
The conservative estimate seems to be that over 90% of cases end in guilty pleas. The United States Courts website estimates that more than 90% of federal cases resolve this way. A 2012 New York Times article reported that 97% of federal cases and 94% of state cases end via plea bargain. (See State vs. Federal Prosecution.)
]]>Alford pleas, like guilty and nolo contendere or “no contest” pleas, result in conviction. Some states allow classic Alford pleas, where defendants plead guilty while claiming to be innocent. Others require a defendant who claims innocence to plead no contest. Others still don’t allow Alford pleas at all: In those states, if you assert innocence, you must plead not guilty.
It’s very important to seek the advice of an attorney before accepting any type of plea deal. Laws regarding the available pleas, their requirements, and their implications vary from place to place. An attorney familiar with the laws of your jurisdiction will be able to help assess your options.
]]>As criminal courts become ever more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system. Criminal trials can take days, weeks, or sometimes months, while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable, whereas a plea bargain provides both prosecution and defense with some control over the result—hopefully, one that both can live with.
For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means less than 10% of criminal cases end up in trials. And though some commentators still view plea bargains as secret, sneaky arrangements that are antithetical to the people’s will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court.
Lawyers and judges often divide plea bargaining into two types: sentence bargaining and charge bargaining. (Plea bargaining can, however, be broken into additional categories.)
Sentence bargaining is a method of plea bargaining in which the prosecutor agrees to recommend a lighter sentence for specific charges if the defendant pleads guilty or no contest to them. Charge bargaining is a method where prosecutors agree to drop some charges or reduce a charge to a less serious offense in exchange for a plea by the defendant.
In most jurisdictions and courthouses, plea bargaining can take place at virtually any stage in the criminal justice process (but see the California exception, explained above). Plea deals can be struck shortly after a defendant is arrested and before the prosecutor files criminal charges. Plea negotiations may culminate in a deal as a jury returns to a courtroom to announce its verdict. If a trial results in a hung jury, in which the jurors are split and cannot make the unanimous decision required, the prosecution and defense can (and frequently do) negotiate a plea rather than go through another trial. And plea deals are sometimes reached after a defendant is convicted while a case is on appeal.
A "no contest" or nolo contendere plea, in essence, says to the court, “I don’t choose to contest the charges against me.” This type of plea, often part of a plea bargain, results in a criminal conviction just like a guilty plea. And a no-contest plea will show up on a criminal record. However, if the victim later sues the defendant in civil court, the no-contest plea often cannot be offered into evidence against the defendant as an admission of guilt. A guilty plea, on the other hand, does serve as an admission of guilt and can be introduced in civil cases as evidence against the defendant. (Note that no-contest pleas do sometimes count in civil court.)
A guilty or no-contest plea entered as a judge-approved plea bargain results in a criminal conviction; the defendant’s guilt is established just as it would be after a trial. The conviction will show up on the defendant’s criminal record (rap sheet). And, the defendant loses any rights or privileges, such as the right to vote, that the defendant would lose if convicted after trial. Depending on the nature of the conviction and the defendant's other interactions with the law, however, the defendant might be able to seal, or expunge, the criminal record.
]]>In-custody defendants may be brought to court soon after the agreement is reached for a special hearing in which the judge takes the plea. Otherwise, the taking of the plea (and sometimes sentencing) will occur at the next scheduled hearing. Depending on when the deal is struck, the next scheduled appearance may be the arraignment, preliminary hearing, or trial.
As a practical matter, many judges go along with plea bargains as long as the agreed-upon sentences are within the range of what they consider fair. Usually this means determining whether, given the seriousness of the crime and the defendant’s criminal record, the sentence seems appropriate in light of other sentences the judge has handed down.
There are some other variables that may come into play, however. Particular judges might (rightly or wrongly) take into their calculation whether they remember the defendant from a previous appearance in their courtroom and how they and members of the community feel (especially if the judge is up for reelection) about the crimes in question. Sometimes, even such whimsy as whether the judge woke up in a good mood or had a rough morning can also have an impact on decisions made that day.
Even if the deal seems fair, judges typically engage defendants in a courtroom “colloquy,” or verbal exchange, to make sure that defendants have committed the offenses to which they are pleading guilty. (But see Pleading Guilty While Saying You're Innocent.)
In federal courts, defendants who want to plead guilty or nolo contendere must testify under oath to facts establishing their guilt. Moreover, before accepting guilty pleas, judges have to be sure that defendants are aware of the rights they are giving up by pleading guilty. For a “knowing and intelligent” guilty plea to be made, defendants have to:
Defendants should also know that, if they are not U.S. citizens, they risk deportation when they are convicted of a crime. Defendants are competent to waive counsel and plead guilty as long as they are capable of understanding the proceedings (Godinez v. Moran, U.S. Sup. Ct. 1993).
In some courts, defendants who are pleading guilty are asked to fill in or sign a form waiving their rights.
Usually the judge asks the defendant a fairly long list of questions to determine whether the plea is knowing and intelligent. For their part, defendants normally follow their attorneys’ advice and avoid upsetting the plea bargaining apple cart by quietly answering “yes” to all the judge’s questions.
Assuming the defendants’ answers are satisfactory, judges typically accept the deal. In some cases, a judge may consult with the crime victim, ask a probation officer to prepare a presentence report, and listen to arguments from both the defense and prosecution before making sentencing decisions.
If a defendant entered into a plea without counsel and did not appear, from a later review of the record, to have made a knowing and intelligent plea, that defendant may have grounds to request that the conviction be stricken (removed) from the defendant’s record, or at least not be considered in any future proceedings. Striking prior convictions can be important because offenders tend to be sentenced more severely with each repeat offense. However, even if a defendant did not have counsel or waived counsel before pleading guilty, the conviction may later be used to make future sentences more severe, unless the defendant was incarcerated after the plea was entered (Nichols v. U.S., U.S. Sup. Ct. 1994).
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>A conditional plea occurs when the defendant pleads guilty or no contest but reserves the right to have an appeals court decide whether the judge reached the wrong ruling on an issue that’s central to the case. If the appellate court determines that the judge was in fact wrong, the defendant can withdraw the plea.
Conditional pleas are available in federal court and in many states. Typically, though, the prosecution and the judge must agree to them. (The agreement with the prosecution may have to be in writing.) The defendant may be able to enter a conditional plea of “no contest,” or the law might require that the plea be “guilty.”
If the law in the state in question doesn’t allow for conditional pleas or the prosecution or court won’t agree to one, the options are limited. If the defendant insists on reserving an issue for appeal and refuses to enter a plea free of conditions, the judge may have to enter a “not guilty” plea on his or her behalf.
On the other hand, defendants sometimes have a right to appeal certain rulings even if their pleas weren’t conditional. For instance, in a few states, defendants, despite having pleaded guilty, automatically may appeal denials of motions to suppress. Defendants can, however, lose that kind of right to appeal by waiving it as a condition of a plea deal.
Regardless of the state, appeals may be possible in other kinds of plea-bargain situations—where, for example, there was ineffective assistance of counsel.
An appeal after a guilty plea can also be possible where the defense is arguing that a law violates the Constitution. The U.S. Supreme Court has held that a guilty plea, standing alone, isn't enough to stop a federal criminal defendant from appealing a conviction on the grounds that the law in question is unconstitutional. In the case leading to the holding, one of the defendant's claims had been that the statute creating the crime he was convicted of was unconstitutional. He argued that 40 USC § 5104(e)'s "Possession of a Firearm on U.S. Capitol Grounds" violated the Second Amendment. (Class v. U.S., 583 U. S. ____ (2018).
The written plea agreement in the case didn't say the defendant couldn't directly appeal on these kinds of grounds. The plea "colloquy" left a little more room for interpretation, but the Court found that the defendant neither "expressly nor implicitly" waived his right to the constitutional challenge.
If a defendant would have appealed after being convicted of a crime but lost the chance to do so because of the defense attorney’s “constitutionally deficient performance,” the defendant received ineffective assistance of counsel. That ineffective assistance entitles the defendant to an appeal—even if the defendant earlier signed a plea agreement with language waiving the right to appeal (what courts refer to as an “appeal waiver”).
The U.S. Supreme Court stated these rules in the case of Garza v. Idaho, where the defense lawyer disregarded the defendant’s requests that the lawyer file a notice of appeal. (A notice of appeal is a first step in an appeal; it often comes before the defense even knows exactly which arguments it will make in the appeal.) (586 U.S. ___ (2019).)
In the Garza case, the Supreme Court found that the lawyer was wrong to fail to file the notice of appeal even though the defendant had signed appeal waivers in his two plea agreements. The Court noted that the ultimate decision of whether to appeal isn’t the lawyer’s, but rather the client’s. And it confirmed that appeal waivers don’t always actually waive the right to appeal.
The specific language of the appeal waiver matters—some waivers forfeit more possible appeal claims than others. And among the other reasons appeal waivers aren’t absolute is the fact that defendants don’t lose the right to challenge whether the waiver itself was “knowing and voluntary.” (Generally, for a waiver to be “knowing and voluntary,” the defendant has to understand its consequences.)
If you face criminal charges or want to know whether you can appeal your case, talk to an experienced criminal defense lawyer. This article doesn't cover close to all the possible grounds for an appeal. An experienced attorney should be able to fully advise you of the law, the procedure, and your options.
]]>For information beyond this article on getting out of a plea, read about withdrawing a guilty plea. For information on appealing after pleading guilty, including ineffective assistance of counsel that costs the defendant a chance to appeal, read about conditional pleas.
A defense attorney has several functions at the plea bargaining stage. Number one is making sure that a client understands and is informed about everything that is going on in the case. An attorney should always explain each aspect of the case, including:
An attorney should also advise a client whether or not to plead by explaining the risks and benefits of going to trial. A defense attorney should help a client reach a strategic decision by analyzing the strength of the case. If the evidence against a client is strong and conviction at trial is likely, then the attorney has a duty to negotiate a plea bargain, unless the client insists on going to trial. (And the lawyer can't admit the client's guilt at trial against the client's wishes.)
For example, let’s say Robert is facing criminal charges for identity theft. The evidence against him is pretty strong and the penalties are stiff. Robert isn’t likely to prevail at trial and his attorney has negotiated a plea bargain with the prosecutor for a plea to a lesser charge and probation. If Robert were to go to trial and be convicted, he would probably face incarceration. In this scenario, the attorney would normally advise Robert to take the plea bargain. However, the ultimate decision would be Robert’s.
The Sixth Amendment guarantees the right to an attorney for anyone faced with criminal prosecution. The Supreme Court has said that this means criminal defendants are entitled to effective representation during the plea bargaining stage. If an attorney doesn’t adequately advise or explain everything to a client, or fails to negotiate a plea bargain on the client’s behalf, then the client might have a viable claim for ineffective assistance of counsel.
But arguing that you had ineffective assistance of counsel after you have pleaded guilty is a difficult task. You generally have to prove that:
If you make an informed decision to go to trial, it might not matter that you had the worst lawyer in the world. If that lawyer was sleeping all the time or drunk during court, but your case was so weak that you would have been convicted anyway, an ineffective assistance claim won’t overturn your conviction.
But if you rejected a plea deal that you didn’t understand because your lawyer didn’t fully advise you about it, you may be able to successfully claim ineffective assistance of counsel. Situations where courts have found that there was inadequate representation at the plea bargaining stage include:
Courts are wary of undermining the criminal process—it would be problematic if every time defendants didn’t like their lawyer or weren’t happy with the outcome, they could successfully claim ineffective assistance of counsel. Generally, to win a claim of ineffective assistance, the lawyer’s performance has to be pretty egregious.
But sometimes appellate courts determine that there was ineffective assistance during the plea bargain stage, and that the ineffective assistance changed the outcome of the case. In these instances, an appellate court will overturn the conviction, effectively taking the case back to square one.
The exact laws and procedures that apply to a case depend on the court system the case is in. If you want to know whether you can unwind a plea, consult an experienced attorney (not one whose poor representation contributed to your current situation).
]]>A defendant can typically withdraw a guilty plea that a judge hasn’t yet accepted. Also, defendants who have pleaded but not yet been sentenced can sometimes get out of their deals, particularly when the judge rejects the negotiated agreement pursuant to which the defendant pleaded. (The prosecution can sometimes back out of a deal, too.)
For example, if Clay pleads guilty to bribery in exchange for the prosecution’s agreement to a three-years-or-less sentence, but the judge indicates an intention to sentence him to five years, he can probably withdraw the plea.
Some plea deals require the defendant to waive the right to appeal; not surprisingly, undoing a plea in these instances can be particularly tough. But even without a waiver, once a judge has sentenced a defendant, the odds of getting out of a plea can be long.
After sentencing, the trial judge will typically set aside a conviction and allow plea withdrawal only if it’s necessary to avoid an obvious injustice. It’s generally not enough, say, that the prosecution agreed to and did recommend a certain sentence as part of a plea deal, but the judge imposed a longer one. After all, the judicial system prioritizes efficiency, and rehashing cases is no way to speed the docket along. In addition, judges entertaining plea withdrawals are supposed to consider the potential effect on the prosecution. If, for instance, the prosecution lost contact with witnesses who were necessary for trial between the time of the plea and the attempted plea withdrawal, the judge might deny the defendant’s request.
Despite the general difficulty of withdrawing a guilty plea, circumstances exist where judges can—and must—allow defendants to withdraw.
Indeed, judges are required to set aside guilty pleas (even without a request from the defendant) when they receive an indication that a defendant isn’t guilty or didn’t fully understand the charges or the effects of admitting guilt.
Likewise, certain factors support, but don’t mandate, a judge allowing withdrawal of a guilty plea. For example, judges are supposed to take into account the length of time between the plea and the attempt to withdraw; typically, the quicker the attempt, the better for the defendant (unless it’s so prompt that it indicates haste). Another circumstance in a defendant’s favor is lack of counsel: Not having legal representation when pleading guilty is a fact tending to support subsequent withdrawal.
Plenty of people who take a turn through the criminal justice system are unhappy with their lawyers. But simple dislike for or dissatisfaction with a lawyer isn’t enough to withdraw a plea. Rather, the lawyer must normally have been ineffective and the reason the defendant pleaded guilty.
For example, suppose Clay’s lawyer didn’t investigate or otherwise work on the case at all, but nevertheless convinced his client that conviction at trial was automatic. Meanwhile, there was exonerating evidence that a competent lawyer would have discovered and that would have inspired Clay to go to trial. If Clay pleads guilty in that instance, he might be able to withdraw his plea.
There are various situations in which trial or appellate judges are generally supposed to allow defendants to withdraw their pleas. These include—but aren’t limited to—the following:
After a defendant, with the court’s permission, withdraws a guilty plea, the case normally reverts to the point before the original plea. The defense can hammer out another deal with the prosecution or go to trial. If the reason for the withdrawal undermines the prosecution’s case (as in the instance of newly discovered evidence of innocence), the judge might even dismiss the charges. But withdrawing a plea doesn’t always end happily: There’s typically no guarantee that the defendant won’t receive a harsher sentence if convicted (again).
If you pleaded guilty or “no contest” to a crime and want to withdraw your plea, consult an experienced criminal defense attorney (not one whose poor performance necessitated the withdrawal). Such a lawyer can explain all the conceivable bases for setting aside a plea and analyze your prospects. That lawyer will also know the appropriate procedure—whether, for example, to bring a motion in the trial court or to seek review by an appeals court.
]]>Read on about terms courts use to describe different forms of plea bargaining.
The defendant pleads to a crime that’s less serious than the original charge, or than the most serious of the charges.
Many consider count bargaining to fall under charge bargaining. Here, the defendant pleads to only one or more of the original charges, and the prosecution drops the rest.
The defendant takes a guilty or "no contest" plea after the sides agree what sentence the prosecution will recommend.
The defendant pleads in exchange for the prosecutor’s stipulation that certain facts led to the conviction. The omitted facts would have increased the sentence because of sentencing guidelines.
For further discussion of the kinds of plea bargains—and the process by which judges decide whether to accept or reject them—see How Judges Accept and Reject Plea Deals.
]]>To evaluate a proposed plea bargain, the judge must know all the terms of the deal, including any future conditions or unusual aspects. For example, if Donnie Defendant is offered a lighter sentence in return for future testimony against a codefendant, the parties must make this condition clear to the judge when presenting the terms of the plea. Similarly, the parties would have to inform the judge if there is anything unusual in how the defendant will complete his sentence—for example, if the terms of the plea require him to perform 600 hours of community service but only on weekends.
Yes, the judge has a choice of whether to accept or reject a plea agreement. To make that decision, the judge evaluates whether the punishment is appropriate in light of the seriousness of the charges, the defendant’s character, and the defendant’s prior criminal record.
Other factors to consider include:
While plea procedure varies from judge to judge and jurisdiction to jurisdiction, judges must always decide whether to accept the plea terms before the defendant actually enters the plea.
When judges decide on a proposed plea bargain, they may be able to:
In some jurisdictions, if the prosecution and the defendant agree to a sentence and the judge accepts the negotiated plea, that judge must accept the entire agreement, including the agreed-upon sentence. Other states don't require the judge to accept the sentencing recommendation even when accepting a plea agreement. And some jurisdictions require that the accused be given the opportunity to withdraw the plea if the judge doesn’t follow the sentencing recommendation.
When judges refuse a proposed plea bargain, they must follow their jurisdiction’s procedure, which usually requires that they identify on the record the reasons for not accepting the deal.
Once the judge accepts the defendant’s guilty or no contest plea and enters a conviction, that judge can’t later overturn the plea agreement. However, when the parties agree upon a negotiated plea that requires that the defendant perform certain conditions, the court retains jurisdiction until the conditions are satisfied. If the defendant doesn’t satisfy the conditions, the judge can reject the plea and resentence the defendant. An example is a defendant who, in order to receive community service instead of jail time, agreed to but failed to complete the assigned service.
If you want to know whether a judge might reject an actual or potential plea bargain, or if you simply want to understand plea-bargain procedure, talk to an experienced criminal defense lawyer. Do the same if you want to know what your options are. A knowledgeable lawyer will be able to fully explain the rules and customs—which differ from place to place—in the court in question.
]]>For the most part, a prosecutor has the right to withdraw a plea deal as long as it hasn't been officially entered and finalized in court. Some courts, however, have found the prosecution's withdrawal of an offer improper in certain circumstances even before it's finalized.
In most courts across the country, the prosecution usually has until the defendant enters the plea in court and the judge accepts it to back out of the deal. But even where prosecutors are free to back out of not-yet-official plea deals, courts must protect defendants’ rights: If the prosecution backs out, it may not be able to use at trial any statements the defendant made during plea negotiations.
Courts in many places consider statements inadmissible if a defendant makes them in reasonable reliance on the possibility of a plea deal. In other words, even if the prosecution and defense have merely discussed a deal that the prosecution doesn’t later agree to, statements made by the defendant during plea negotiations may be inadmissible.
The American Bar Association (ABA) created a stricter standard for prosecutors, but most courts don’t follow it. In essence, it provided that it’s unprofessional for the prosecution to back out of a plea agreement once it offers one to a defendant and the defendant indicates that he accepts it. (The standard has since changed but a few courts still follow its principles.)
Under this minority view, even if the defendant hasn’t had the chance to formally take the plea in court, the prosecution can’t back out unless:
For example, the prosecution would be able to back out under this standard if the defendant skipped town, or if it found out that the defendant had prior convictions that it didn’t know about.
Keep in mind that different states may vary not only in whether they follow the majority or minority view but also in other ways that define how and when either party can back out of a plea deal. For this reason, it's important to talk to a criminal defense attorney.
The law varies from one place to another (including from state to federal court), and the information in this article isn’t exhaustive. Only an attorney familiar with the law in your area will know the circumstances under which the prosecution can back out of a plea deal, and whether any or certain statements during the negotiation process could be admissible in court. Professional legal advice is crucial for understanding not only whether the prosecution can back out of a deal but also whether a particular prosecuting office is likely to do so.
]]>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.
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.
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.
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).
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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