Generally, where District Attorney’s are up for election with opposition, the issue of plea bargaining is raised. Some are for it some against it. But just exactly what is it?
Most think of such bargaining as copping a plea to a lesser offense. For example, a person charged with burglary offers to plead guilty to trespassing. Under the common law burglary is the unlawful entry of a building with intent to commit theft or other crime inside the building, a felony. Whereas trespassing is the unlawful entry onto property without permission of the possessor, a misdemeanor.
The accused burglar seeks to obtain the reduction in the felony charge to avoid the risk of being sentenced to state prison but willing to serve county jail time for a misdemeanor. An example of classic plea bargaining.
In death penalty cases the accused will often offer to plead guilty to murder if the District Attorney will drop the death penalty allegations.
Plea bargaining isn’t the only aspect of the criminal law that is subject to bargaining. The prosecutor and defendant can enter into sentence bargaining. Many crimes can be sentenced by commitment to either state prison or county jail. Sentencing is within the province of the court, not the prosecutor or defendant. The DA can agree with the defendant not to argue that he/she be sentenced to state prison but only county jail.
About 90% of criminal cases are settled by plea bargain. Plea bargains are subject to approval of the court. But there are rules. Some states allow the defendant to withdraw their plea if the court rejects the plea bargain; some don’t.
The United States Supreme Court recognizes plea bargaining as essential and desirable. It provides relief of court congestion by reducing jury trials and alleviates the risks and uncertainties of trial. Prosecutors are often criticized for engaging in plea bargaining.
To illustrate, persons charged with drunk driving seek to get the DA to allow the defendant to plead guilty to reckless driving (called a wet reckless). In some jurisdictions that avoids mandatory jail time, a lesser fine, and preservation of their driving privileges.
The charges filed are within the sole discretion of the District Attorney. Whether to engage in plea or sentence bargaining is also within the discretion of the DA.
The exercise of prosecutorial discretion is influenced by two factors: approval or disapproval by the voting public and of the police agencies who submit the case to the District Attorney for prosecution.
Police agencies expect the District Attorney to file and prosecute defendants for the crimes for which they are arrested. A District Attorney that repeatedly fails to meet that expectation soon loses the support of the police.
The general theory of the duty of a prosecutor is to see that justice is done rather than just getting convictions. That demands a close review of the evidence submitted by the police to determine whether or not the defendant is in fact guilty of the crime for which prosecution is sought. The next most critical question is whether the available admissible evidence is strong enough to convince a jury beyond a reasonable doubt that the defendant committed the crime charged.
The District Attorney wields significant power in deciding what, if anything, to charge and, once charged, whether to plea or sentence bargain. Often evaluating the strength or weakness of the prosecution’s case is fairly easy, but not always. Objective and professional judgments requires experience, attention to detail, and trial skill. The job isn’t easy.
Related posts:
