Plea Bargaining

The vast majority of criminal cases eventually result in pleas of guilty or nolo contendere. Under either plea, you are guilty of the crime originally charged or of a lesser offense agreed to by the parties. Nolo contendere means “I do not contest [the charge].” On the other hand, a guilty plea is a specific admission of guilt. The practical effect is that the nolo plea avoids automatic civil liability. Let us say a nursing home operator is accused of the crime of abusing patients. If the operator pleads guilty, anyone who sues him or her for civil damages will not have to prove that the abuse occurred. However, if the operator pleads nolo contendere, the civil court will have to decide whether the acts alleged took place.

Plea bargains are legal transactions in which a defendant pleads guilty to a lesser charge or pleads guilty to the original charge in exchange for some other form of leniency. The rationale is based on the notion of “judicial economy”-plea bargains avoid the time and expense of a trial, freeing up the courts to hear other cases. The benefit to defendants is that the process is completed much sooner than it would be if they went to trial. Further, defendants are afforded a sense of certainty; they know what the outcome of their case will be, rather than taking their chances at trial.

Generally such offers are more generous in the early stages of prosecution as an incentive to the defendant to bring the case to an early conclusion. In many cases, the prosecution extends such offers at the time set for the arraignment. Such an early “disposition” of the case tends to be favored by the prosecution, the defense and the judge because it eliminates several additional court appearances that would have been required had the case continued to trial.

In certain cases, the defense would be better off waiting to thoroughly investigate the case and consider a later offer or possible dismissal of the charges. For example, consider the case of a person charged with attempted murder because he allegedly uttered a death threat when he shot someone in the leg. An early offer might be to plead guilty to assault with a deadly weapon, which is a serious felony carrying a sentence of several years. However, after the victim testifies inconsistently at a preliminary hearing, the prosecutor realizes that he or she would not be a credible witness at trial. Rather than risk an acquittal at trial, the prosecutor may offer to plead the case down to a misdemeanor, such as negligent discharge of a weapon.

If you do not accept the offer when the prosecution first makes it, the prosecutor is allowed to reduce or withdraw the offer.

You do not have a right to have the prosecutor negotiate a plea with you or your attorney. However, prosecutors usually will offer a plea bargain to reduce their heavy caseloads. In most jurisdictions, the court has no obligation to adhere to the bargain the prosecution offers, but in many cases the judge will accept the plea if a legal basis for it is established in court.

The judge is under no obligation to accept all terms of the plea bargain. Before accepting your guilty plea, the judge will explain the maximum time to which you may be sentenced and the maximum fine, if any, that may be imposed. That time may exceed the sentencing recommendation of the prosecution, or the judge could impose a shorter term in the interests of justice. If you do not accept at that point, your guilty or nolo contendere plea will not be entered and you will go to trial. Most often, however, the judge will honor the plea bargain reached between the parties unless he or she feels it is unfair.

Plea bargaining has become extremely commonplace. Today approximately 85 to 90 percent of all criminal cases are settled through plea bargains. The process, however, is not without its critics. Some “victims’ rights” groups feel it is immoral for criminals to serve less time through plea bargaining than they would if convicted of actual crimes committed. In response to citizen pressure, some states, such as California, have passed laws severely restricting or even prohibiting plea bargaining in certain serious or violent crimes.

A plea of not guilty must be accepted. However, a judge cannot accept a guilty plea unless he or she ensures that you understand the rights you are giving up and that you are doing so of your own will (free from coercion or threats). In many states, the judge also must determine that there is a factual basis for your plea; in other words, that you actually are guilty of the offense. Should you decide to plead guilty, the judge will ask you a series of questions in open court to ensure that your guilty plea is valid.