Approximately 90% of all criminal cases in the United States are pled guilty, and a majority of these cases are a result of plea negotiations. Plea negotiation is defined as pleading guilty in exchange for something of value from the prosecutor—generally, a reduction of charges or counts or a more favorable sentence recommendation. There is a great amount of psychology in determining the factors that influence the negotiation process. It is important to understand the term plea negotiation and identify the different types of pleas and plea negotiations—all of which this article discusses. In addition, this article addresses the role of both the prosecutor and defense attorney in this plea negotiation process. Finally, this article addresses legally relevant and legally irrelevant influences of the plea negotiation decision.
Understanding Plea Negotiation
The term plea negotiation suggests a contractual agreement between two parties with one party making an offer to give something of value in exchange for something of value in return from the other party. In a sales contract, for example, a seller will offer a product of a certain value in exchange for some monetary payment from the buyer. In some cases, the buyer can negotiate the terms of the purchase either reducing the sale price or changing the quality or quantity of the item. The buyer can also negotiate any of these terms in return.
The negotiation is a type of bartering system between the two parties. In criminal justice, the two parties are the prosecutor, who represents the state or commonwealth, and the defense attorney, who represents the defendant. For the prosecutor, one of the goals is to seek and carry out justice for the community and/or victim. For the defense attorney, one of the goals is to obtain the best deal for his or her client. Therefore, in plea negotiations, the prosecutor desires to obtain a conviction with a level of punishment to obtain the kind of justice the victim and/or community desires. The defense attorney seeks to minimize the impact of this justice on his or her client.
Much like a contractual negotiation, each party—prosecutor and defense attorney—holds a certain amount of authority. On one hand, the prosecutor determines the type of charge, the severity of charges, the number of charges and/or counts of a particular charge, and the type and/or length or amount of a recommended punishment. On the other hand, the defense attorney determines if the case will go to trial or not by accepting and/or negotiating the terms the prosecutor offers.
A plea agreement, therefore, is a defendant’s guilty plea in exchange for a reduced charge or number of counts or a reduced sentence. Both parties give something of value in exchange for something of value in return.
Types of Pleas
All plea negotiations—if successful—require two things. First, the defendant must plead guilty to the terms negotiated. Second, the judge must approve the terms of the plea negotiation. In order to understand plea negotiations, though, it is important to understand the different pleas one can make at arraignment—the part of the criminal court process in which the prosecutor must give the defendant notice of official charges and the defendant makes a plea in response to those charges.
The first type of plea one can make in open court is guilty. Pleading guilty necessitates the defendant to admit wrongdoing and accept the punishment required for the charges made by the prosecutor. The second type of plea during one’s arraignment is not guilty. This plea communicates to the court that the defendant does not admit guilt and wants to contest the charges in a trial. The prosecutor, therefore, carries the burden to prove that the defendant committed the crime; the level of that burden is beyond a reasonable doubt, which is approximately 85–90% certainty.
A third type of plea a defendant can make during arraignment is nolo contendre—otherwise known as no contest. This plea allows the defendant to accept the punishment without admitting guilt. This plea protects the defendant from civil lawsuits and additional punishment for subsequent criminal charges. A fourth and related type of plea is called an Alford plea—named after the U.S. Supreme Court case titled North Carolina v. Alford (1970)—which allows the defendant to accept the punishment given that the evidence is enough to find guilt in a trial, but the defendant does not have to admit guilt. Although there is a possibility that the charge or charges might be dismissed by the judge for insufficiency of evidence, this type of plea allows for subsequent criminal or civil action unlike no contest. Pleas of guilty, not guilty, and Alford pleas can play a significant role in plea negotiations. Two more pleas—not guilty by reason of insanity and guilty but mentally ill—can be made in open court that address one’s mental status at the time of the crime, but they generally do not involve plea negotiations.
Types of Plea Negotiations
Plea negotiations in a criminal case are defined as pleading guilty in exchange for something of value from the prosecutor. There are several different types of plea negotiations based on what the prosecutor could do. These different plea negotiations are charge negotiations, count negotiations, and sentencing agreements.
Charge negotiations and count negotiations are directly controlled by the prosecutor. Charge negotiations take multiple forms. First, a defendant can plead guilty in exchange for a reduced charge. For example, the prosecutor reduces the severity of the charge—from a felony to a misdemeanor, for example—in exchange for a guilty plea. Second, a charge negotiation can include a reduction of the number of different charges. For example, the prosecutor reduces three different offenses down to one offense.
Similarly, the defendant and the prosecutor can enter into count negotiations. The defendant may have been originally charged with multiple counts of one particular offense. In a count negotiation, the defendant may agree to plead guilty to one count of that particular offense in exchange for the prosecutor dropping the other counts. These decisions are at the discretion of the prosecuting attorney.
A final type of negotiation is called a sentencing agreement. In this plea negotiation, the defendant agrees to plead guilty in exchange for a more lenient sentence recommended by the prosecutor to the judge without reducing the charges and/or counts. Since the sentence is ultimately determined by the judge and/or jury, the prosecutor cannot guarantee this term of the plea negotiation. However, based on the sort of day-to-day shared environment between prosecutors, defense attorneys, and judges—known as the courtroom workgroup—the defendant can rely upon this sentence agreement.
Roles of the Prosecutor and Defense Attorney
To understand plea negotiations in the U.S. criminal justice system, it is important to understand the roles played by the attorneys involved— namely, the prosecutor and the defense attorney. Each plays a role in making the decision to enter into a plea negotiation but have different orientations and levels of authority in this negotiation process.
The role of the prosecutor is to prove that the defendant fulfilled the requirements of a particular crime (known as elements) and that the evidence supports this conclusion beyond a reasonable doubt—a heavy burden. The prosecutor in most states is a political figure, that is, prosecutors are either elected or appointed by an elected official (e.g., governor). Therefore, they are accountable to a certain group of constituents in this political climate. From a sociopolitical perspective, the prosecutor has additional strains than merely winning the case. To be certain in obtaining convictions, prosecutors rely on guilty pleas and enter into plea negotiations even if trial may be the desire of the community.
The prosecutor holds a vast amount of discretionary power in the courtroom. The prosecutor can decide to charge or not, to determine the severity of those charges and how many charges or counts to apply in the case. The prosecutor can use his or her discretional authority to request a certain pretrial release—bail. The prosecutor can decide whether to charge the defendant with an enhancement or even the death penalty. Finally, the prosecutor uses his or her discretion to enter into plea negotiations and to determine the terms of that negotiation.
The defense attorney has a different role in the criminal case. Since the prosecutor must prove the requirements of the crime beyond a reasonable doubt, the role of the defense attorney is to question evidence presented by the prosecutor and provide evidence that would produce reasonable doubt. However, the defense attorney has a different set of pressures. First and foremost, the defense attorney must advocate for his or her client—the defendant. Unlike the prosecutor, the defense attorney does not have the added political pressure to win the case. On the other hand, the defense attorney does not have the type of discretionary power and authority in the case as does the prosecutor. The prosecutor sets the case in multiple ways; the defense attorney typically can only respond to the case. Finally, a defense attorney can either be public or private, which adds its own type of pressure. Private defense attorneys are paid by the client, whereas public defense attorneys are paid by the state or commonwealth and provided to the defendant if the defendant cannot afford an attorney, which is a right protected by the Sixth Amendment to the U.S. Constitution as interpreted by Miranda v. Arizona (1966).
Factors Influencing Plea Negotiations
Both the prosecutor and defense attorney can be interconnected in the courtroom workgroup whereby both sides have an understanding of the going rate of what the case is worth. Given this regular working environment and the predetermined going rate of the value of the case, plea negotiations can become routinized. Many factors can influence this negotiation process regardless of the routine nature of these decisions.
The most influential factor on plea negotiations is the strength of the evidence in the case. If the evidence is strong, then the certainty of conviction is high, and therefore, the need to negotiate a guilty plea is greatly reduced. There is great debate about what makes evidence strong or weak. Does the presence of DNA evidence make evidence strong? Does the sheer volume of evidence make evidence strong? Is eyewitness testimony found more credible coming from some sources compared to others? How is strength of evidence assessed?
Strength of evidence is a factor that is known as a legally relevant factor because the determination of whether a case is convictable is a legally rational factor. There are other factors that are less legally relevant. For example, the sociopolitical factors and pressures both the prosecutor and defense attorneys feel would be classified as less legally relevant to serving justice.
Another legally irrelevant factor on plea negotiation is whether the defense attorney is private or public. Some argue that attorneys might be more motivated to advocate for defendants if they earn higher wages, that is, private attorneys are stronger advocates than public defense attorneys. If private attorneys are viewed as stronger advocates, then the plea negotiations are more favorable for defendants. In addition, the caseload for public defense attorneys is typically much higher than private attorneys because most defendants cannot afford a private attorney.
With the combination of political pressures, courtroom workgroup, affordability of certain types of attorneys, and the mounting caseloads, Rodney Uphoff summarized three types of defense attorney personalities in plea negotiations: zealous advocate, double agent, and beleaguered dealer. The zealous advocate personality fits the private attorney the best in that the private attorney stops at no cost to advocate for his or her client without regard to salvaging any relationship in the courtroom workgroup. The double agent plays both sides in trying to salvage the relationships with different prosecutors in order to assist his or her cases in the long term but attempts to convince his or her client that he or she is a strong advocate. Finally, the beleaguered dealer is frustrated by high caseloads with low resources and is reluctantly willing to engage in a high volume of plea negotiations. The beleaguered dealer is an often-used representation of the public defender.
Finally, many would argue that the factors that are the most legally irrelevant are demographic characteristics of the defendant. The marginalized characteristics of the defendant may influence the prosecutor’s negotiating practices in obtaining a guilty plea. For example, are Black defendants less likely to obtain a favorable plea negotiation than White defendants? Are male defendants less likely than female defendants? Are younger defendants less likely than older defendants? These factors are still debated today.
References:
- Ball, J. D. (2006). Is it a prosecutor’s world? Determinants of count bargaining decisions. Journal of Contemporary Criminal Justice, 22, 241–260.
- Bushway, S. D., & Redlich, A. D. (2012). Is plea bargaining in the “shadow of the trial” a mirage? Journal of Quantitative Criminology, 28, 437–454.
- North Carolina v. Alford, 400 U.S. 25 (1970).
- Redlich, A. D., & Özdóğru, A. A. (2009). Alford pleas in the age of innocence. Behavioral Sciences & The Law, 27, 467–488.
- Uphoff, R. J. (1992). Criminal defense lawyer: Zealous advocate, double agent, or beleaguered dealer? Criminal Law Bulletin, 28, 419–456.