Night versus Day/ Apples versus Oranges
What is plea bargaining?
Plea bargaining is the process that occurs between a prosecutor and defendant when they are seeking a resolution to a criminal case short of a trial. The prosecutor is seeking a result that promotes justice and deterrence of criminal conduct. A defendant is seeking a result that provides the best result possible for maintaining their freedom or regaining their freedom after a term of imprisonment.
A. State Plea Bargaining:
In State court, plea bargaining focuses on what the punishment will be for the criminal offense as agreed to by the parties. There are any number of possibilities to a resolution, i.e. conditional dismissal, Pretrial diversion programs, deferred adjudication community supervision, straight community supervision, shock probation, or incarceration. Of course, the results are case fact dependent. If a person has prior criminal history, depending on the severity of the prior conduct, some options may not be readily available.
A criminal defense attorney will navigate the client through the plea bargaining process and should think outside the box, push the envelope, and try to negotiate the best possible outcome for the client when the client believes it is in his or her best interest to resolve the case without going to trial. Acceptance of responsibility and being proactive in demonstrating a desire to change or showing remorse can be very helpful in negotiating a favorable outcome.
B. Federal Plea Bargaining:
Plea bargaining in the federal system is completely different from the State plea bargaining process explained above. The biggest difference is the end result, i.e. punishment. In the State, you negotiate for the punishment result. In the federal system, you are negotiating for a lesser charge, agreement on sentencing factors and possible mitigation. There are some different types of plea agreements:
- Rule 11(c)(1)(C) agreement. This type of plea agreement is negotiated where the parties agree on a specific sentence, sentencing range, and/or the applicability of certain sentencing factors. If the Court accepts the plea agreement, then the Court must follow the parties agreements in the plea agreement. If the Court rejects the plea agreement, then the client is allowed to withdraw their guilty plea.
- Rule 11(c)(1)(B) agreement. This type of plea agreement sets forth the parties recommendation for punishment to the Court, but does not bind the Court to follow the recommendation or stipulations of sentencing factors, if the Court accepts the plea agreement. Moreover, if the Court does not follow the parties recommendation or stipulations, the client is not allowed to withdraw their guilty plea. More common is a federal plea agreement that promises the dismissal of other charges in the indictment, an agreement to not prosecute any other offense arising from the underlying charged conduct, etc.
- Conditional Plea Agreements. For a conditional plea agreement, by agreement of the prosecutor, it allows for a client to appeal the denial of a motion to suppress the evidence. However, if a client’s motion to suppress is denied, and they plead guilty without a conditional plea agreement, then they will not be able to appeal the denial of the motion to suppress.
In rare circumstances, there is also the possibility of Pretrial Diversion or special Pretrial Diversion programs. However, Pretrial diversions are very difficult to obtain from the Government, and are very much the exception rather than the rule.
Law Office of Kevin B. Ross, P.C.
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