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Plea Bargaining


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A guilty plea is formal admission of guilt and is the equivalent of a conviction. Most often, it occurs as part of a plea bargaining process which may result in reduced charges or an agreed-upon favorable sentence. The vast majority of criminal cases in the U.S. are resolved through this procedure.

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Types of Guilty Pleas

In the American legal system, there are essentially two types of guilty pleas: guilty and nolo contendere (or "no contest"). A plea of guilty is an admission that one has committed the crime in question, and an acceptance of the related punishment. A plea of nolo contendere allows the defendant to accept the punishment related to the crime without admitting to the crime. It is instead a statement that the defendant will not contest the charges levied against him. Courts in the United States very rarely accept nolo contendere pleas.

Guilty pleas are often entered as the result of a plea bargain or an agreement in which a prosecutor and a defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty to a specified charge in exchange for a mutually agreed-upon sentence, a sentence recommendation to the judge, or the dismissal or reduction of other criminal charges. Quite often, an agreement to testify against a co-defendant is a condition of a plea bargain.

In the United States, the supervising judge must approve of any guilty plea or plea bargain. Generally a judge will authorize the plea if the defendant makes a knowing and voluntary waiver of his right to trial, the defendant understands the charges, the defendant understands the maximum sentence he could receive after pleading guilty, and the defendant makes a voluntary confession, in court, to the alleged crime. Even if a defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea bargain if the charge or charges have no factual basis or support.

The court must also explain the nature of the crimes to which the defendant is pleading guilty. For example, while a person not involved in the legal system by trade or experience may have a general notion of what a crime such as murder means, he may not understand the difference between murder and manslaughter. It is important for the defendant to understand the crime to which he is pleading guilty, so that he may better understand the potential ramifications.

The court must also clearly explain to the defendant the mandatory minimum and possible maximum penalty related to the charge as well as certain collateral consequences, such as the possibility that the defendant will be deported.

When a court in the United States accepts a plea bargain, the guilty plea operates as a conviction, and the defendant cannot be retried on the same offense by the same governmental entity. If the government breaches a plea bargain (for example, by arguing for a specific sentence when the agreement is that it will not do so), the defendant may seek to withdraw the guilty plea, ask the court to enforce the plea bargain, or ask the court for a favorable modification in the sentence. If the defendant breaches a plea agreement (for example, by refusing to cooperate in the prosecution of co-defendants), the prosecution may re-prosecute the defendant.

Guilty plea and accompanying waivers must be voluntary

In the American criminal justice system, a guilty plea that is the result of coercion or force is not acceptable to the court. The requirements discussed above are designed to provide the defendant with the depth of knowledge required to make an informed decision. If, after being informed of all the implications of entering a guilty plea, the defendant chooses to enter that plea, it is considered to be a voluntary waiver of rights, as specified above.

Factual Basis Determination

The court must also determine that there is a factual basis for the plea. Generally speaking, this is done through a "colloquy," or conversation, between the defendant and the judge in which the judge states the facts that the government believes it can prove and the defendant states that he accepts those facts as true. The facts must support the crime to which the defendant is pleading guilty.

Benefits of Pleading Guilty to the Defendant

The result of a guilty plea is often a reduction in charges (e.g., murder to manslaughter). Different but related charges may have varying degrees of social stigma attached. Admitting to a lapse in judgment may not carry the same social stigma as admitting to an act that was committed with a malicious intent to cause harm to another. In some cultures, defendants may be ostracized for admitting one particular crime, whereas admitting to a different crime, albeit possibly related, may not carry the same level of shame. Reduced charges also typically bring about a reduction in the punishment.

A trial never has a guaranteed outcome. No matter how strong either side's case may be, both sides always face the possibility of losing. Pleading guilty removes the uncertainty of the trial and provides a finite universe of potential penalties. The stress of criminal prosecution can be great on the defendant and his family, and even though a guilty plea is being entered, many defendants may prefer to put an end to the ordeal and have some sense of finality. From a practical standpoint, if the defendant is paying for private counsel, entering a guilty plea prevents the costs associated with a trial from being incurred. Keep in mind, however, that all defendants have a right to a fair trial, not simply those who can afford it. The idea that entering a guilty plea costs less is simply a side effect of pleading and should not really be considered as a factor.

Negotiation Tips

The defense lawyer should discuss strategies and potential tactics for the negotiation, including whether to argue for a reduction of the charge (for instance, from first-degree murder to manslaughter), a specific recommendation for sentence (for example, six months in prison), and/or an agreement by the prosecutor not to oppose the defendant's request for probation (supervision by the government for a specific period of time). It is always the defendant's decision whether to enter into a plea agreement. The defense lawyer can only explain the benefits and drawbacks and make a recommendation.

The defense lawyer should consider the severity of the crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial when preparing to negotiate with the prosecutor. He should also consider collateral consequences of a guilty verdict. For example, many states have what are called "three strike" laws which mean that after a third felony conviction, punishment is significantly enhanced. If a client already has two felony convictions, he may be well-advised to take his chances at trial. On the other hand, if the charge can be bargained down to a misdemeanor offense, the defendant might be well-advised to take the plea.

The prosecutor typically may not offer a plea bargain if the alleged crime is particularly heinous or the case is highly publicized or politically charged.

The defendant may wish to reject a plea bargain if the defendant believes that the possibility of acquittal--being found not guilty at trial--outweighs the possibility of conviction.

Benefits and Harms

Plea bargaining is a controversial feature of the criminal justice system. Supporters argue that it resolves matters quickly, speeds court proceedings, reduces the number of cases in overburdened courts, guarantees convictions, reduces the number of people in overcrowded jails, helps prosecutors manage their caseloads and saves the government the time and cost of a jury trial.

Opponents claim that plea bargaining can put pressure on defendants to plead to crimes that they know they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills of the defense lawyer, which puts persons who can afford good lawyers at an advantage. The defense lawyer must be sure that the defendant fully understands the rights he is waiving and the consequences he is facing as a result of a plea bargain.

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