Plea Bargaining
"Plea bargaining is an essential component of the administration of justice. Properly administered, it is to be encouraged . . . It leads to prompt and largely final disposition of most criminal cases."
- --Chief Justice Warren Burger
- Santobello v. New York
,- 404 U.S. 257 (1971).
"Where is appears that the interest of the state in the effective administration of criminal justice will be served, the prosecution, while under no obligation to negotiate any criminal charges, may engage in plea negotiation for the purpose of reaching an appropriate plea agreement."
--National Prosecution Standards, 2d Edition
Section 66.1 (1991)
1. Introduction
Plea bargaining is the process where a prosecutor negotiates with the defense and reaches an agreement as to what will happen to the defendant in return for a plea of guilty. This might take the form of agreeing to dismiss certain charges in return for a plea to other charges; it might take the form of agreeing to a particular sentence; it might be as little as saying the prosecution will simply remain silent and make no recommendation whatsoever as to the sentence.
Some commentators believe that plea bargaining is necessary to keep the criminal justice system from becoming too bogged down with trials. Others feel the system would continue to work just fine with no plea bargaining at all. The Cape Girardeau County Prosecuting Attorney’s Office has tried it both ways over the years, without much noticeable difference in results.
At the Cape Girardeau County Prosecuting Attorney’s Office, we will engage in plea bargaining in most cases in our effort to seek justice in every case. Our prosecutors are to keep in mind at all times, however, that not every defendant is entitled to any sort of plea offer and that plea bargaining should only be used to achieve justice in a particular case, not simply to avoid a trial or other extra work.
2. Guidelines
(1) In determining whether to make any sort of plea offer in a case the prosecutor handling the case should consider the following factors enumerated by the National Prosecution Standards:
1. The nature of the offense;
2. The degree of the offenses charged;
3. Any possible mitigating circumstances;
4. The age, background, and criminal history of the defendant;
5. The attitude and mental state of the defendant at the time of the crime,
the time of the arrest, and the time of the plea discussion;6. Sufficiency of admissible evidence to support a verdict;
7. Undue hardship caused to the defendant;
8. Possible deterrent value of prosecution;
9. Aid to other prosecution goals through non-prosecution;
10. A history of non-enforcement of the statute violated;
11. The age of the case;
12. Likelihood of prosecution in another jurisdiction;
13. Any provisions for restitution;
14. The willingness of the defendant to waive (release) his right to pursue potential civil causes of action arising from his arrest, against the victim,
witnesses, law enforcement agencies or personnel, or the prosecutor or his staff or agents, where such willingness is concurred in and recommended by the defendant’s counsel.15. With respect to witnesses, the prosecution should consider the following:
(1) The availability and willingness to testify;
(2) Any physical or mental impairment;
(3) Certainty of identification;
(4) Credibility of witness;
(5) The witness’s relationship with the defendant;
(6) Any possible improper motive of the witness;
(7) The age of the witness;
(8) Undue hardship of the witness caused by testifying.
16. With respect to victims, the prosecution should consider those factors
identified above and the following:(1) The existence and extent of physical injury and emotional trauma
suffered by the victim; and(2) Economic loss suffered by the victim.
(2) All plea agreements in both felony and misdemeanor cases should be written on the front of the defendant’s file folder. In many cases the plea offer will have been set out, too, in a letter to the defense lawyer outlining our best offer. In some cases, the prosecutor will have prepared a formal written plea agreement with caption and signatures. The prosecutor handling the case should have the plea agreement clearly indicated on the file folder prior to the law day when the plea will take place, thus preventing any confusion over the exact terms of the plea agreement.
(3) Although the decision as to any plea offer is up to the prosecutor, not the victim, the prosecutor should take the wishes of the victim into consideration when making a plea offer. Particularly in cases involving personal injuries or personal degradation to a victim (such as felony assaults and forcible rape cases) the prosecutor should discuss possible plea offers with the victim prior to making the offer to the defense.
(4) Any plea offer should be sent to the defense at the earliest time the prosecutor knows what it will be.
(a) Ideally, the plea offer should be conveyed as a cover letter accompanying the State's Answer to Defendant's Motion to Produce.
(b) In many cases the plea offer can be sent as a cover letter with a complete copy of the police reports to the defense lawyer shortly after the case is filed, even before the preliminary hearing in a felony case.
(5) Once a plea offer is made, the Cape Girardeau County prosecutor’s office will not improve the plea offer as the trial date approaches. This is not like a civil case where there is a lot of room for negotiation. We file the charges we think are appropriate and we only offer by way of plea agreement a disposition we feel is right. We will not "cave in on the day of the trial." We would rather lose or dismiss a case than agree to a plea agreement that we do not believe is an appropriate disposition.
(6) We will often put a deadline on the time the plea offer must be accepted by the defense. This helps prevent wasted time on the part of prosecutors, police officers, victims and witnesses. It also helps the judges manages their trial calendars.
(7) We will never reduce a charge to an offense that does not fit the facts of the case. For example, in some jurisdictions prosecutors have been known to reduce failure to yield or speeding cases to things like having an improper muffler. This sort of plea bargaining knocks the integrity out of the criminal justice system. Our office will never to do that type of plea bargaining. The charge to which a defendant pleads guilty absolutely must fit the facts of the case.
(8) We will keep in mind that in some cases, such as a death penalty murder case or other serious violent crimes, the maximum sentence is the only appropriate disposition and that no plea offer whatsoever should be made.
(9) We will always remain vigilant that no innocent person is pleading guilty simply to avoid a trial.
(10) We will normally oppose an Alford plea (where the defendant refuses to admit his guilt but wants to plead guilty because he thinks the jury would find him guilty and wants the advantage of the plea offer) unless the facts indicate that there is a believable reason why the defendant does not remember committing the crime (such as intoxication by alcohol or drugs).
(11) We will not reduce felony burglary to misdemeanor trespass unless it truly was not a burglary.
(12) We will not agree to refrain from seeking the revocation of a driver's license under the Abuse & Lose law as a part of any plea agreement.
(13) In general, we will not reduce felonies to misdemeanors, with certain exceptions:
(A) We will usually be willing to reduce a felony stealing case to a
misdemeanor if the amount involved is $1,500 or less;(B) We will usually be willing to reduce a felony bad check case to
a misdemeanor of the amount of restitution still owed is less than $2,400 dollars;(C) We will usually be willing to reduce a felony domestic assault to
a misdemeanor if the victim is agreeable, if no weapon was used, if no serious physical injury occurred, and if provisions are made either for the defendant to serve time in jail or to obtain counseling for anger management and any alcohol or drug problems;(D) We will usually be willing to reduce a felony driving while
revoked or driving without a valid license case to a misdemeanor.(14) We will generally not agree to probation on a drug sale case.
(15) Our recommendation in driving while intoxicated cases will depend upon the number of priors and other factors, more fully set out in our DWI policies.
(16) Our recommendations in speeding cases are set out more fully in our traffic policies.
(17) We will never condition a plea bargain upon the forfeiture of any of the defendant’s seized property.
(18) Similarly situated defendants should be afforded substantially equal plea agreement opportunities.
(19) Although we have general policies, each plea offer is determined individually on the unique facts and circumstances of the particular case and upon our interest in seeking justice in every case and not solely on the basis of a policy pertaining to the offense.
(2) Plea offers outside the range of our normal policies should be approved by the Prosecuting Attorney prior to being made.
3. Local Rules Pertaining to Plea Bargaining
The 32nd Judicial Circuit has a written set of local court rules. Rule 67.9 and Rule 67.9.2 read as follows:
67.8 Plea Bargaining
This court does not recognize any plea bargains
that involve the amount of the fine or the length of the sentence that a defendant will receive or whether or not he will receive probation.67.9.2 Petition To Enter a Plea of Guilty
In all felony cases wherein the defendant desires
to plead guilty, the defendant and his attorney shall prepare a petition to enter a plea of guilty on a form adopted by this court. The petition to enter a plea of guilty shall be ready to be executed by the defendant and his attorney in open court. Copies of petitions to enter plea of guilty forms may be secured from the clerk's office.NOTE: The above rule notwithstanding, as a practical matter the judges in the 32nd Judicial Circuit will inquire about any plea offer during the guilty plea and make it a part of the record. If the judge later decides to exceed the plea agreement at the time of sentencing, the judge will normally give the defendant the opportunity to withdraw the plea.
4. Rule 24.02(d) of the Missouri Rules of Criminal Procedure
The Missouri Supreme Court has promulgated 24.02 concerning plea bargaining. All prosecutors and lawyers should be completely familiar with it:
(C) Insuring That the Plea is Voluntary. Except as provided by Rule 31.03, the court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty results from prior discussions between the prosecuting attorney and the defendant or his attorney.
(D) Plea Agreement Procedure
The court shall not participate in any such discussions but after a plea agreement has been reached the court may discuss the agreement with the attorneys including any alternative that would be acceptable.
1. In General. The prosecuting attorney and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering the plea of guilty to a charged offense or to a lesser or related offense, the prosecuting attorney will do any of the following:
(A) dismiss other charges; or
(B) make a recommendation, or agree not to oppose
(C) agree that a specific sentence is the
appropriate disposition of the case; or(D) make a recommendation for, or agree on,
another appropriate disposition of the case.The court shall not participate in any such discussions but after a plea agreement has been reached the court may discuss the agreement with the attorneys including any alternative that would be acceptable.
2. Disclosure of Plea Agreement -- Court's Action Thereon. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to the acceptance of rejection until there has been an opportunity to consider the presentence report.
4. Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his
guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.5. Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or of any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the
person who made the plea or offer. However, evidence of a statement made in connection with and relevant to, a plea of guilty, later withdrawn, or an offer to plead guilty to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.6. Determining Accuracy of Plea. The court shall not
enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.5. ABA Standards Relating to Plea Discussions
Standard 3-4.1 Availability for Plea Discussions
(a) The prosecutor should have and make known a general
policy or willingness to consult with defense counsel concerning disposition of charges by plea.(b) A prosecutor should not engage in plea discussions directly with an accused who is represented by defense counsel, except with defense counsel's approval. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant, although, where feasible, a record of such discussions should be made and preserved.
(c) A prosecutor should not knowingly make false statements or representations as to fact or law in the course of plea discussions with defense counsel or the accused.