Saturday, January 7, 2012

May it “Pleas” the Court?

Before Defendants reach the trial stage, most prosecutors will offer a plea agreement.  A plea agreement is a bargain between the prosecution and the Defendant to have a lowered sentence in exchange for a guilty verdict.  Depending on the crime and the Defendant’s criminal background, different factors influence the agreement offered.  When the odds are stacked against a Defendant, wouldn’t taking a suspended sentence and probation make much more sense than “a day in court” and risking years in jail?  This topic has caused much controversy and tension on both ends of the spectrum.  For some Defendants the most important outcome is a non-guilty verdict, while for others it may be the ability to start working or having the ability to move on with their life, which jail time or certain convictions could prevent. 

In offering pleas, the ordinary rules of evidence do not apply.  The court has been generally hands off when dealing with plea negotiations.  Some people consider this to be a positive; however, it is truly up to the defense attorney to explain to their client what the plea means and what consequences guilty verdict holds.   With almost 90% of convictions being settled with pleas, the impact this has on minorities is of interest since the prison system is mainly populated with minorities.  Pleas are a great way to move the docket and to guarantee a “speedy trial” but should this be at the expense of a possible non-guilty verdict?  Once the Defendant has agreed to the plea, the conviction remains on their record as if they went to trial and they have “pleaded” their omission of guilt. 

With the upcoming election year, if someone pleas to one felony to have the prosecution drop the other counts, that person will still not be eligible to vote.  Currently, 25% of African American men do not have the right to vote; given this information, maybe pleas are not worth the possible lightened sentence in certain situations. 

On the other hand, the State should probably investigate certain Defendant’s backgrounds more thoroughly before offering pleas.  The question arises, if the judge sees something in the Defendant’s background that the prosecution does not see, should the court be so removed as to not disclose this information before the Defendant accepts the plea?  For instance, assume the prosecutor does not see a history of money laundering within the Defendant’s record because it is not available in the state.  However, the Court has those records; if the person is taking a plea for the same activity, should the court have some input if the plea is based on the prosecution’s belief that the Defendant has a clean record?  Generally in this case, the court will not be involved, no matter how egregious.

With so much flexibility regarding pleas, some less concrete factors are going to be analyzed in the offer.  But should race ever play a role?  It is easy to say no, but statistics have demonstrated otherwise.  Forty-four percent of African Americans are incarcerated which begs the question of who is committing the most crimes.  However, once statistics illustrate African American men are twenty-seven times more likely to be incarcerated for drugs, where the only difference is color, what is the solution? 

A more critical look at pleas is necessary.  If there is a noticeable difference in the types of pleas given to African Americans, is the system fair?  How will African Americans ever get the best compromise if color creates the disadvantage?  The solutions to pleas are uncertain as negotiation and bargaining dates back in legal history for centuries.  However, the implications are stark and could cause a disparate impact for African Americans than trials.  This is not to say trials are the best method for every conviction, but training or ways to allow officers and attorneys to be aware of these statistics could be a good start.  Pleas are necessary to allow the legal system to run smoothly, but race and some “soft factors” must be analyzed critically when deprivation of people’s freedom and disenfranchisement is at an all time high.

Abre’ Conner
Associate Publications Editor, Criminal Law Brief

Image by InsideMyShell


  1. this topic deserves more attention. very interesting piece.

  2. Your article is well written, but flawed. You mix two concepts, plea agreements in criminal cases and over representation of minorities in the criminal justice system to justify your premise.

    If you look at the federal sentencing guidelines, or the Maryland sentencing guidelines, you will see that both contain mitigators and aggrevators used to determine sentences. In Maryland, looking at the offense, the guidelines take into consideration the nature of the offense, any injury to the victim, weapon use and special vulnerability of the victim. On the offender side, the considerations are to the relationship to the criminal justice system when the instant offense occurs, a juvenile record, if any, prior adult criminal record and prior adult parole or probation violations. Race is not a factor.

    Prosecutors will obtain copies of a defendant's criminal record. If there is a record, those offenses will be factored into a score pursuant to the guidelines. The crime and the offender's criminal history will control the guideline range. The guideline range is not controlled by race. The defense attorney will be provided a copy of the client's record, and should calculate the guidelines independently from the prosecutor.

    A plea agreement extended to the defendant through counsel is an offer. The defendant may accept the offer as presented, request changes to the offer, thus the negotiation, or reject the offer and go to trial. The defendant thus has choices.

    Should the defendant accept the offer, the case is scheduled before a neutral and detached judge. That is a judge who had no part of the negotiations. That judge is free to accept the plea agreement or to reject the plea agreement, thus sending the case to trial before 12 people from the community.

    It is very easy to turn and blame a prosecutor. The defense attorney must represent the client competently, act with diligence, communicate with the client and advise the client to the best of the attorney's ability as to what counsel believes is in the best interest of the client. The ultimate decision to accept or reject a plea rests with the client.