Rethinking the Plea

I work with all kinds of different prosecutors. When it comes to plea bargaining, the differences often become particularly apparent.

A lot of prosecutors send out a letter with the first plea offer saying how any subsequent offers will be substantially harsher. They tell you the first offer goes away as soon as they have to do work, and they may view counter-offers as rejections. They have to think about your proposal, don’t they? Plea negotiations are a game where the plea isn’t intended to fairly resolve the case based on its unique facts and the unique history of the defendant, but to minimize workload and maximize the efficient use of state resources.

Some prosecutors make offers that plainly indicate they fear trial and will do almost anything to settle. Others don’t know their cases well enough for there to be any logical relationship between the offer and the case or even the offer and the defendant. Some of the worst prosecutors make offers based only on a mantra of being tough on crime. When their trial schedules get backed up and they start having to dismiss winnable cases, they become a defendant’s best friend. They lament the fact those dirty, no-good defense lawyers didn’t get their clients to plead.

From my perspective, both as a citizen and a defense lawyer, the best prosecutors make offers based on the facts of the case and the defendant’s history and personal circumstances. Time-saving and efficiency aren’t major factors in the offer. The interests of justice are the interests of the prosecutor, and the offer reflects that. I just handled a case where it was obvious the prosecutor subscribes to that school of thought.

The initial plea offer was fair. It was exactly what my client wanted at first, and we had signed the agreement and set the matter for a change of plea hearing. The prosecutor knew this.

Shortly after having reached what seemed to be a final resolution, my client came to me with new, mitigating factors. They didn’t affect his chances at trial. They only made a shorter prison sentence more appropriate in light of his family situation. I went to the prosecutor, who said he’d think about it. Yesterday, he approved a new offer.

Why? In his mind, the interests of justice required a new offer. If they didn’t, he wouldn’t have changed it. He knew the case would plead out regardless, so efficiency and time management clearly didn’t matter. Fear also didn’t matter for those same reasons, and being tough on my client never factored into the equation. By rethinking the plea under those circumstances, the only thing he succeeded in accomplishing was being fair. Many of his colleagues wouldn’t understand.

When I first started out, I saw a hard-nosed and thoroughly incompetent prosecutor laugh at some mitigating evidence before saying to another defense lawyer, “I prosecute the crime, not the defendant.” Based on my view of a prosecutor’s role, one the bar seems to endorse as well, he had it wrong. Luckily, I know for a fact that at least one other prosecutor has it right.