Saturday, April 18, 2015

Write Away: P is for Plea Bargain

Again the options abound for words today. I discarded persecution, the distinctions among kinds jails and prisons, and the ever-popular “Perp”. By the way, “perp” is more of a TV show word. Real law enforcement officers prefer suspect or perpetrator. So unless one of your characters is a low life who only knows life from television, don’t use “perp.”

Nope, none of those. I settled today on plea bargain because there is so much angst and misunderstanding around the process.

A plea bargain (also plea agreement, plea deal, negotiating a plea, or copping a plea) is any agreement in a criminal case between the prosecutor and defendant in which the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

Not all cases can be plea bargained. If the crime the perpetrator was charged with has a mandatory sentencing requirement, the prosecution cannot amend the sentence. But sometimes the prosecutor can reduce charges to moderate the harsher, mandatory sentence.

However, no prosecutor can guarantee the suspect a sentence, only recommend a number on the range given for sentencing on specific charges. Sentencing is judicial purview, so savvy prosecutors involve the judge early on in the process so the judge and prosecutor are in tandem.

Both defense and prosecuting attorneys weigh the strength of the case and whether or not a trial or plea bargain is the more attractive option. Either attorney may broach the option. The suspect must agree to this option before it is implemented.

Even with a plea bargain, the defendant appears before the judge for a voir dire (oral examination) that might be quite lengthy. The judge will typically ensure that the defendant knows he/she is giving up certain rights: the right to a trial, the right to call witnesses, and the right testify. The judge makes sure the defendant knows what the charges are and what a guilty plea to each means. Without voir dire, a defendant might have claims for an improperly conducted judicial process. And that could result in additional time and money, one of the major reasons for the plea bargain.

Even though criticized, 90% of criminal convictions are achieved through plea bargains. For sure, there are advantages and disadvantages to the plea bargaining process. The mystery writer could build several scenes around the process using these pros and cons.

Pros for the defendant:
1) The trial might reveal more evidence that is even more damaging to the defendant with a risk of more severe penalty.
2) The jury could find defendant guilty of more severe charges.
3) The judge could be a stricter one and throw the book at the suspect.
3) Lesser charges appear on the defendant’s criminal record.

Pros for the prosecution:
1) Plea bargains result in a higher conviction rate than if all cases went to trial.
2) A plea bargain might result in harsher penalties for a co-defendant using testimony from the defendant in the plea deal.
3) The prosecutor clears a case from a crowded calendar avoiding a perhaps lengthy and expensive trial.
4) A jury might acquit or be hung, unable to decide (so a decision to re-try could happen).
5) Judges like settled cases for the same reasons so attorneys build good will with judges.
6) Prisons are overcrowded, so reducing sentences clears beds sooner.

Cons for the defendant:
1) The defendant must admit guilt and can’t try to convince judge and jury of innocence.
2) If innocent, the defendant gives up the right to try to prove that

Cons for the prosecution:
1) Victims and the public often see a plea bargain as being soft on crime, that justice was not served.
2) If the plea deal doesn’t include specifics of sentencing, judges might be more lenient.

Even with a plea bargain, and thus a prosecution, in the criminal case, a civil trial is still possible and some will plea nolo contendere (“no contest”) or “guilty with a civil reservation” proviso so as not to admit to civil liability. That doesn’t stop civil cases moving on and does not affect a verdict. The civil case has to prove itself without an admission of guilt for civil charges. The convicted criminal is saying, “I’m not going to help you prove your case.”

Are you reading “The List”? Things are not good with Freida and Mort. What will she do with this revelation?

           “Please tell me this means we are vacating that dreary apartment you’ve had since the Dark Ages?”
            “Well, not exactly,” Mort looked out at the water. “It means you are.”
            Mort picked up a mussel shell from a collection he had started earlier in the week. He stroked the purple-black linee that formed the striations on the outside of the shell. Still not looking at her, Mort explained the key and what it meant for their future.


  1. I often wondered if 'perp' was a term they may actually use. I know each work sector seems to have their own slang.

  2. I often wondered if 'perp' was a term they may actually use. I know each work sector seems to have their own slang.

  3. I've heard from several law enforcement professionals that they don't use it. Now, do some individual cops? Probably. Just like some people use other derogatory terms. I think they are really trained to avoid the jargon and label things accurately. That's what I'm told, anyway.