Negotiating the criminal justice system is a daunting task that often involves
high risks of social stigma, loss of liberty, hefty fines and expensive
probationary requirements. It is not a situation that a person should
engage in without the sound advice of competent legal counsel. This is
primarily because of the rights that are foregone when a criminal defendant
pleads guilty under a plea bargain agreement, the potential for collateral
consequences when entering a plea bargain unadvised, and the fact that
any plea negotiations are unique to each case because of the varying facts
and law involved.
This article will present the pros and cons of plea negotiation, the risks
and rights associated with trial versus a plea deal, and the possible
collateral consequences a defendant might face if entering into a plea
What is Plea Bargaining?
A plea bargain is an agreement to settle a case without trial that is reached
between the prosecutor and the defendant. Essentially, the prosecutor
gives the defendant an opportunity to plea to lesser charge than the original,
or plea to a lesser sentence on the original charge. For example, the
prosecutor may offer a DUI defendant a potential plea to a DWAI on a first
offense as incentive to avoid trial on the original DUI charge. This offer
would result in less penalties and fines, but still results in a conviction
for the criminal defendant for the DWAI.
Deciding whether to enter into a plea bargain requires the review of many
factors in each individual case. The criminal defendant must carefully
weigh the strengths of his or her case to decide whether or not it is
prudent to go to trial. In order to make this determination, the criminal
defendant must assess his or her desire to go to trial, the seriousness of the
potential sentence both at trial and under the plea offer, cost, and the possibility of collateral
consequences of entering into the bargain.
Benefits of Plea Bargaining
For some criminal defendants, plea bargaining is a welcomed way to take
away the uncertainty of a criminal trial and to avoid conviction for a
more serious crime, and to
avoid the maximum sentence. Criminal jury trials can be highly stressful and jury decisions are highly
unpredictable, and a plea bargain will allow the defendant to know with
certainty what consequences he or she will face if the plea offer is accepted.
Plea bargaining is also a negotiation process between the defendant and
the prosecutor. When a defendant is represented by competent counsel,
the plea negotiation process can be used to point out the factual strengths
of the defendant’s case and the weaknesses in the prosecution’s
case, and to suggest alternative lesser charges that fit the facts of
the defendant’s arrest. This direct negotiation by competent counsel
can result in alternative lesser sentences than that originally offered
by the prosecution providing even lower fines and potential sentence to
the criminal defendant.
Once a plea offer is accepted, the prosecutor and the defendant are both
bound by the terms of the offer, which will state the original charges,
the reduced charge under the plea offer and sentencing recommendations
for the court. By binding the prosecution to the terms of the plea offer,
the defendant can rest assured that the matter will be resolved under
the terms of the deal, thereby eliminating any further stress and worry
over how the case will be resolved. Should the court reject the plea bargain,
the defendant is entitled to resume his or her trial preparation, or begin
new negotiations with the prosecutor.
Drawbacks of Plea Bargaining
The single biggest drawback to plea bargaining is when the innocent defendant
decides to plead guilty to a lesser charge simply to avoid the risk that
he or she will be found guilty at trial. When a defendant accepts the
plea offer, the court adjudicates the defendant guilty. With the adjudication
of guilty, the criminal defendant relinquishes
all of his or her rights to a jury trial and to an appeal, and the charges under the offer become part of the defendant’s
permanent criminal history.
What Happens In Plea Negotiations
In nearly every criminal case, the prosecutor will look at the charges
and facts of a defendant’s case and determine a potential lesser
charge to settle the case without going to trial. Once the prosecutor
decides on the plea offer, that offer to include the reduced charges and
any sentencing terms are provided to the defendant directly if unrepresented
or to defense counsel. When using competent defense counsel, counsel can
inform the defendant whether the plea offer is a good reduction of charges
and if the facts of the case could be used to possibly negotiate for even
If both sides and the court agree on the terms of a plea bargain, the agreement
will be clearly stated in writing and / or orally on the court record.
Both sides are then legally required to follow the terms of the plea bargain.
Collateral Consequences of Plea Bargaining and Criminal Conviction
In some professions, where child custody may be disputed, and with immigrants
who have not received citizenship, certain criminal convictions can have
rather serious collateral consequences.
For example, if a defendant holds a commercial driver license (CDL,) a
conviction for any of the major traffic offenses established by federal
statute for motor carrier safety can result in license suspension or revocation.
Even a plea bargain to a reduced charge may still fall within these regulatory
guidelines and have serious consequences for the CDL holder. Another example
is where a defendant holds a professional license or is an educator. Under
the statutes that regulate professional licensing and teaching, certain
convictions can result in suspension from the profession, revocation or
suspension of licensing and termination of employment. Without proper
guidance on what plea offers will and will not impact licensing and employment,
what may seem like a good plea at the time can result in serious negative
impacts on the defendant.
Just as some professional can be negatively impacted by entering into a
particular plea agreement unadvised, defendants who have child custody
agreements and immigrants have specific risks for negative collateral
consequences. A parent defendant is more likely to risk the loss of visitation
rights with some convictions because of the nature of those charges than
with others. Likewise, an immigrant defendant may face automatic deportation
for some convictions and not with others. In both situations it is vitally
important to be properly advised before accepting any plea agreement.
This is because (as mentioned above) once the plea is entered, the defendant
has essentially no recourse to change it to avoid the negative collateral
consequences that may arise from the plea.
Plea bargains do offer benefits to the criminal defendant but those benefits
come at the expense of foregoing the right to trial and appeal. Once a
plea agreement is entered into, there is little ability to withdraw the
guilty plea. Any conviction, whether from trial or from a plea agreement,
can lead to rather harsh collateral consequences. Although the examples
listed above deal with specific situations where knowing what is a safe
plea and what is not is of particular concern, all criminal defendants
face possible collateral consequences.
Only a defendant that is well advised by competent counsel can truly be
assured that the plea is the best option, and that agreement is one that
will offer benefit rather than harm.
For further information or questions, please contact The Evans Firm.