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Plea bargaining: I don't think that means what you think it means

Unless you have had the benefit/misfortune/privilege to be involved with the criminal system, your impressions of how that system works likely come from movies and TV. This reality leads people to falsely think that the daily lives of lawyers and their clients resemble the scenes in shows such as "Law and Order," "Boston Legal," "The Practice," etc. Allow me to be the person to disabuse you of that notion. Although I have had the pleasure of enjoying some "Law and Order" moments, the truth is those are few and far between. Sure, I have had some dramatic cross-examinations in my career, given bombastic closing arguments, heard potential jurors say all kinds of wild things in jury selection, and I had clients share secrets with me that I will be honored to take to the grave, as is my ethical duty as a licensed attorney. But most of the time, the work of a criminal defense attorney simply does not make for good television. This is most plainly true in the area of plea bargaining, which is rarely the subject of movies and television.


It might shock you to learn that most criminal cases do not go to trial. My best estimate is that less than 10% of criminal prosecutions make it to trial. If you think about it, given the state of the world, that has to be true. There simply are not enough courtrooms, judges, or jurors for every case to go to trial (particularly after COVID shut down courthouses across the country). However, it is the criminally accused person's right to go to trial and no one else's. This reality potentially puts prosecuting agencies in a bind that I would best summarize as "we want to convict this guy, but we don't want to do a trial." There are two basic reasons why the prosecution might not want to go to trial: (1) they would rather use the expenditure of resources on something else, and (2) they legitimately are worried that they will lose the trial. It can often be a combination of both of these, but the most common reason a prosecuting agency will not want to go to trial is the former rather than the latter.


So, when the prosecution has already chosen to prosecute someone that they do not want to take to trial, the prosecution has to get the accused to waive their trial rights. The prosecution does this in two basic ways: (1) by increasing the risk of going to trial for the accused by way of harsh charging decisions that lead to worse sentencing outcomes upon conviction, and (2) by offering an alternative to trial (a plea) that is sufficiently attractive for the accused to waive his trial rights.


Here in Arizona where I practice, we have mandatory sentencing for felonies. What this means in practical terms is that the prosecution gets to set the terms of the risk of going to trial quite definitively with its charging decision. Where the prosecution can opt to charge in multiple ways, the prosecution will often, if not usually, choose to charge in the harshest way possible. For example, a person who is arrested for possessing a moderately large amount of illegal drugs, an amount that could still be arguably for personal use, might be charged with possession for sale, a Class 2 felony with a potential prison sentence of between 3 and 12.5 years, rather than with simple possession, which is a Class 4 felony with a potential prison sentence of only 1 to 3.75 years. The charges in this setting work much like the sticker price on a car. The car dealer does not actually expect anyone to pay the sticker price, but a person will ultimately be willing to pay more on a higher sticker price than on a lower one. So too is the case with guilty pleas.


All else being equal, a criminal defendant who is charged with a Class 2 felony, will think a plea to a Class 5 felony is a much better deal than the same offer off of a Class 4. The prosecution knows this. Now, some of my esteemed colleagues on the prosecution side of things might be quick to point out that prosecutors are ethically bound to not file charges that they do not have a good-faith basis to believe they could prove beyond a reasonable doubt at trial. I think most prosecutors do follow this. However, lawyers tend to be fairly smart people who are capable of developing good-faith bases if the occasion calls for it. So with that understanding, the prosecution will charge what it can to make the accused feel that whatever is offered in exchange for their waiver of their trial rights is worth accepting.


My clients often think that the very fact that the prosecution is offering them a plea means that the state's case is weak. However, that is not necessarily true, as addressed above, and is actually rarely true. The prosecution has a "superpower" no one else in the system has: prosecutorial discretion. Judges have to preside over the cases that come into their courtrooms. Defense attorneys have to defend their clients regardless of who their clients are or what they did. Prosecutors, conversely, need only prosecute the cases they find worthy of prosecution. So, if the prosecuting agency has made a determination that it cannot prevail at trial (i.e. the case is weak) all it needs to do is dismiss the case. That being said, there is a bit of bluffing that sometimes comes into play. The prosecution might be willing to dismiss the case but will wait until the very last moment to do so in hopes that the defense will not call its bluff and instead accept a plea offer. An experienced criminal defense attorney, like an experienced and skilled poker player, can sniff out when the other side is bluffing, or at least have a decent shot at it.


As a criminal defense attorney, I have a professional obligation to relay any offer to settle to my client. What this means is that no matter how bad the offer is or how adamantly my client has told me they will not be accepting a plea offer, I have to discuss the offer with them. I have no discretion on that. However, the ultimate choice of accepting or rejecting the offer always lies with the client. My role in that setting is as counselor, I counsel my client so that my client can make the right decision for themselves. The mere fact that I am discussing an offer with my client means nothing about the offer's merit.


My clients will often react to the offer by asking me to make a counteroffer. This is appropriate as the process of plea negotiations is in fact a negotiation, but negotiating is not the same as wishing. Let's return to the car sales example. If a person went onto a used car lot and saw a shiny red mustang that caught their eye with a sticker price of say $30,000, it would be appropriate to make a counter offer. However, if the counteroffer were for $10,000, it would also be appropriate for the salesman to laugh that person off the lot and request that they not waste the sales team's time any further. That being said, if the person could point to actual reasons why the car is only worth $10,000 (e.g. there is no engine, the car was totaled in an accident, etc), the tenor of the conversation would be very different. Much the same way, when my clients direct me to seek a plea where the potential sentence will be between 1 and 2 years in prison and the offer was for 10-15, we better have facts to point to in order to convince the state that its "car" is not worth the asking price. This is where pointing out weaknesses in the state's case becomes crucial. If I as the defense attorney can persuade the prosecution that its chances of winning the trial are not as good as they originally estimated, we can get some movement on the offer. However, where the state's case is strong and the state has already taken into account its weaknesses, the movement on the offer will be limited.


Ultimately, some cases just need to go to trial. Where my clients insist they will not take a plea, there is no other option. Sometimes the prosecution itself is intent on taking the case to trial, particularly in cases with high notoriety and media attention. But in the overwhelming majority of cases, there is a deal to be struck and in those cases, as an experienced defense attorney, I help my clients get the best deal they can.

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