Friday, September 11, 2009

Plea Bargaining and How To Avoid Its Evil Side

It is a fact that most criminal cases don't go to trial; instead, most cases, (perhaps 80-90% of all criminal cases), result in plea bargains. Plea bargaining is like the WD-40 of the criminal justice system. Cutting deals to avoid trials generally benefits both parties and it also removes the "squeaks" from our overloaded courts. In other words, without some plea bargaining, our courts would arguably collapse from the weight of all the defendants demanding trials!

However, as a former federal prosecutor, (and currently as a criminal defense lawyer), I can tell you that prosecutors should try to avoid some of the evil, or seemier, sides of plea bargaining. Here are a few ideas:

1. Consult With Your Crime Victim: Most of the bad rap on plea bargaining comes from the prosecutor not taking the time to simply talk with the crime victim, (or victim's family members), before cutting a deal with the defense attorney. Imagine how you would feel if your family member has been murdered and the prosecutor has allowed the defendant to plead guilty to a lessor charge without giving you any forewarning or explanation. You would be outraged! Over the years, I have learned that, if you communicate with a victim, (or victim's family members), and develop a good rapport, then they will trust you if you need to plea bargain because of evidentiary problems. But you must earn that trust through communication!

2. Consult With Your Case Investigator: Also, imagine how you would feel if you were a criminal investigator and you have worked your tail off to catch a bad guy, and then some wet-behind-the-ears prosecutor has plea bargained your case to "spitting on the sidewalk" and has done so without ever calling you to get your input! This happens in the real world! And it explains why investigators often dislike plea bargaining, (and some prosecutors)!

3. Avoid Plea Bargaining As To Sentence: A lot of the bad rap about plea bargaining also comes from the prosecutor agreeing to a specific sentence that the defendant, "Sluggo," gets to serve. In other words, don't you agree that there is something a little unsavory about allowing Sluggo to have a say-so about his own sentence? Prosecutors can avoid this scenario by attempting to plea bargain only as to the number of counts a defendant must plead guilty to, or by allowing a defendant to plead guilty to a lesser included offense, but leaving the question of sentencing up to the judge.

These are just some of the ideas that I have learned, as a former prosecutor, about how to lessen the "evils" of plea bargaining. Again, plea bargaining may be evil, but it is a necessary evil. And the primary key to avoiding its seemier side is for the prosecutor to COMMUNICATE -- with the crime victim, (or victim's family members), and with the investigator who made the case.

Don't you agree that good communication is often the key solution to problems in most relationships?!


  1. I understand that plea bargaining is a necessary evil, but it is also a 2 edged sword. We all know that justice are for those who can buy it and the law apply to everybody else.
    Sometime I feel prosecutor and defense lawyers are playing God. I thing that plea bargain should be an option only for lesser charge, and should not be an option for child molesters, repeated offenders. I do understand that deals have to be made lesser the court load, but how many time, prosecutor and defense lawyers have made a plea bargain, for a lesser charge, the sentence was converted, and the accused was released early to perpetrate another crime...
    Consulting with the families,the case investigator and most of all avoiding a plei bargaining as to sentencing are excellent ideas they should be part of the law.

  2. You have made some excellent points! As a former prosecutor, (and child advocate), I NEVER plea bargained as to sentence with a child molester! Thanks for the comment!