Most cases end with a bargain

Most criminal cases end with a plea of guilty rather than a trial. Therefore, from the very start you and your criminal defense attorney should be looking for an opportunity to dispose of the charge short of trial.

Criminal plea agreements and bargains fall into two categories:

  • Charge Bargains: Agreements to plead to certain charges in exchange for a promise to drop or not to bring others.
  • Sentence Bargains: Bargains in which you negotiate the particular sentence to be imposed.

Charge bargains

A charge bargain is one in which the prosecutor agrees to dismiss or forego certain charges in return for your plea to other charges.

If the sentences on multiple charges merge for sentencing, this bargain may provide little benefit for you. However, if the other charges carry greater penalties or mandatory minimum or consecutive sentences, a charge bargain is a good deal.

You want to avoid collateral consequences. Thus, if each of several charges carries the same sentence, you want to bargain for the one that carries fewer collateral or future consequences. Generally, try to avoid convictions for crimes of violence, sex offenses or drug offenses because these crimes often trigger adverse immigration consequences, disqualifications for benefits programs, sex offender registration and recidivist sentencing provisions on subsequent convictions.

You also want to minimize the counts of conviction. Multiple convictions, even in a consolidated indictment or case, may count more in sentencing calculations on future cases. Furthermore, concurrent multiple sentences of probation or supervised release may return to haunt you. Upon a finding of a violation, the judge can unpack the concurrent sentences and run terms of imprisonment on each count consecutively.

Sentence bargains

A sentence bargain is one in which you and your criminal defense lawyer negotiate the particular sentence to be imposed. Thus, with a sentence bargain you reach an agreement either with the judge or the prosecutor on the appropriate sentence.

The value of a sentence bargain depends on several factors, including whether the judge participates or accepts the bargain. The federal courts and most jurisdictions forbid the trial judge from participating in plea bargaining. However, this is not a constitutional rule. Some jurisdictions permit judges to participate and promise a particular sentence in exchange for a plea.

If the judge participates and promises the sentence, you can rely on the promise if it is memorialized on the record. If the judge does not promise a sentence, the prosecutor might agree to recommend a particular sentence or sentencing range, but the recommendation does not bind the judge, and you cannot withdraw your guilty plea if the court deviates from the recommendation at sentencing. Therefore, the value of this agreement depends largely on the judge’s practice in deferring to prosecutors’ recommendations.

In jurisdictions where sentencing guidelines direct the judge’s discretion, you might stipulate to the facts that drive the guideline calculations to arrive at a desired sentencing range. If you and your attorney do not obtain an agreement to the facts that will form the basis for the guidelines calculations, your attorney must monitor the prosecution’s communications with the pre-sentence investigator to guarantee that the prosecutor or the police or victims do not undermine the agreement by feeding the investigator information inconsistent with the agreement.

You can also stipulate to a sentence with the understanding that the judge will permit you to withdraw your guilty plea if the judge should demur at the time of sentencing.

Another possibility is that a prosecutor may agree not to make any recommendation or statement at sentencing, to take no position regarding the sentence, or not to oppose your attorney’s recommendation. However, there are complications with this type of agreement. For example, you and your attorney need to know what the prosecutor will say if the judge asks for his or her position once your attorney requests some particular lenient sentence. Most prosecutors will not agree to join in the request, but a firm statement that the prosecution has no comment on the request for probation or the like gives a signal of agreement to the judge.

In some jurisdictions, the probation department and the judge will accept the prosecutor’s stipulations and guideline calculations. In others, however, probation officers display considerable independence and distrust of the parties’ eagerness to make a deal that resolves the case short of trial and often will calculate a more severe guideline range and recommend a lengthier sentence than the prosecutor. Judges give the probation officer’s calculations and recommendations considerable weight. In this situation your attorney may ask that a presentence investigation report be prepared before a plea so you can weigh the decision to plead fully informed of this key player’s likely position.

If you and your attorney have an agreement on a sentence, you usually want to dispense with a pre-sentence investigation report if possible. At the time of the plea, the judge usually knows nothing about the case aside from what your attorney and the prosecutor tell him. The pre-sentence investigation report might educate him to sordid details that will persuade him to disregard the prosecutor’s recommendation or even to renege on a promised sentence.

No arrest clauses

Many judicial promises contain a “no-arrest” or “no-misconduct” clause. That is, if you commit a crime or get arrested between plea and sentencing, the deal is off.

If the judge suggests such a condition, your attorney might argue for a “no-misconduct” condition because an arrest might not be your doing as the police occasionally arrest the innocent. Nonetheless, courts have upheld rescission of plea agreements for violations of no-arrest conditions.