Plea Bargains


Most Americans have a mistaken view of the criminal justice system, one formed by too many years of watching TV shows like Matlock, Perry Mason and Law & Order. Contrary to popular wisdom, most criminal cases aren’t resolved through trials. Judges and juries don’t weigh proof or determine the adequacy of evidence in 95% of cases. Instead, Defendants are encouraged to take something called a “plea bargain.” Here, the state promises to lower your charge and sentence. In return, you must promise to plea guilty to a lesser charge and waive your rights to a trial and appeal. Many Defendants, worried about the possibility of receiving a tougher sentence, take the deal.

Most of the time, this is a reasonable method of resolving criminal cases. Many have said that the system would go bankrupt if the courts were forced to have a trial on every case that came through their doors. So there’s a great incentive for Prosecutors to give Defendants good deals in many situations.

For example, let’s say we’re dealing with a first time offender who needs psychiatric assistance or medical treatment for a drug problem. Here, the Prosecutor may take these issues under consideration and reduce the charge. This happens more often than you think. Contrary to popular opinion, Prosecutors are people, too.

On the other hand, there are other situations where Prosecutors are more likely to play hardball. For example, police and Prosecutors sometimes overcharge Defendants and the Complaint has no reflection in reality. On occasion, this is done as a bargaining device, where the police and prosecutors promise to reduce the charges if the Defendant promises to turn “State’s Witness” and provide needed information to certain government authorities.

Other times, the state has insufficient evidence to convict somebody of a crime they are “certain” a Defendant committed. However, the state may refuse to tip its hand and reveal its lack of a “royal flush,” so to speak. As such, they bluff and offer the Defendant a plea bargain to a lower charge, hoping the Defendant takes it. Here, the Defendant has a major strategic choice. Does the state have sufficient evidence to convict him of this lesser charge? Are they bluffing? If he refuses the deal and requests a trial, does he increase the chances that the state will acquire the evidence they need to convict him, or did the state already exhaust all their options and is this their last, best chance at conviction?

Sadly, interactions with prosecutors often take on the appearance of high-level poker games: those with weak hands often bluff and pretend they have strong hands, and those with strong hands either immediately display them, or play a waiting game to see if the pot gets any sweeter.

Now, what happens if you’re innocent? Believe it or not, despite all the advancements the United States has made over the years in terms of Civil Rights and criminal justice, innocent people do occasionally get accused and charged with crimes they did not commit.

As an attorney, I believe that this is one of the worst possible things that can happen to a Defendant. Numerous Law Review articles have been written and multiple documentaries have been produced, showing that “plea bargaining” can actually hurt innocent people in the criminal justice system.  Here, innocent people may feel enormous pressure to plea guilty, through the pressures of coercion and duress and fear of punishment, even though they are completely innocent. Legal scholars argue that had these innocent people gone to trial, there would have been a strong chance of acquittal. 

A few years back, PBS had an excellent documentary on their TV Series, Frontline, which discussed how criminal courts in America handle plea-bargains. It was an excellent program and I think all my clients should watch it. I also think they should read all the essays and articles PBS had hyperlinks to. The best clients are informed clients.

Link to Frontline’s TV Show on Plea-Bargains:

Link to Frontline’s TV Show on the Real World of Prosecutors and Defense Attorneys.

Important Scholarly Articles on Both Sides of Plea Bargaining Issue:

"The Repeal of the Sixth Amendment by the Courthouse Crowd," by Albert W. Alschuler & Andrew G. Deiss. From The University of Chicago Law Review, Volume 61, Number 3, Summer 1994, "A Brief History of the Criminal Jury in the United States," Albert W. Alschuler & Andrew G. Deiss, pages 921 - 928;

"On the Myth of Written Constitutions: The Disappearance of the Criminal Jury Trial," by John H. Langbein. From Harvard Journal of Law and Public Policy, Volume 15, Number 1, Winter 1992, pages 119-127;

"The Case Against Plea Bargains," by Timothy Lynch. Cato Institute. Regulation. Fall, 2003.

"Plea Bargaining Outside the Shadow of Trial." Stephanos Bibas. Harvard Law Review. 117 Harv.L.Rev.2463 (2004).

"Personal Failure, Institutional Failure, and the Sixth Amendment," by Albert W. Alschuler. New York University Review of Law and Social Change, Volume XIV, Number 1, 1986, pages 149-156;

If you are innocent, and your situation matches that of the people illustrated on the Frontline TV show above, it is extremely important that you contact an attorney as soon as possible. Nobody who is innocent should ever be coerced into pleading guilty to a crime they did not commit.

As an aside, there are no general rules in the practice of law. What works for one Defendant doesn’t work for another. Trials may be advisable for one person, but not for another, due to the unique circumstances of their case. The only way one can know what is proper, and what course of action one needs to take, is by sitting down with one’s attorney and discussing all the facts and evidence, even if it takes many hours. Each piece of evidence, each fact, can play an enormously crucial role in determining whether the state can convict you of a certain crime, whether you can be charged with a first or second degree crime, or whether a certain justification exists, like “self-defense” and the like. 

What you don’t want to do is become a statistic; a member of that sad, dreary and growing number of Americans who routinely and habitually plea guilty to each and every offense they are charged with, because they feel they have no other options. Even if you don’t pursue a trial, you still have options. You still have choices. You still have the right to a vigorous and competent defense. 

My South Jersey Law Office regularly serves the NJ communities of Camden, Pennsauken, Bellmawr, Runnemede, Deptford, Westville, Woodbury, Glassboro, Gloucester Township (Blackwood, Glendora, Erial, Sicklerville, Blenheim, Lambs Terrace, Chews Landing, and Hilltop) and Washington Township, (Turnersville, Sewell, Hurffville, Grenloch, CrossKeys, Bunker Hill and Chapel Heights).

If you live in these areas, or any other area of South Jersey and have been charged with speeding or any other sort of driving infraction, then contact my office immediately for a free consultation.  I treat every client with extra-special care and go over the evidence and facts of their case, in-depth, so that no stone is unturned in their legal case.

Call us for quality, compassionate, and individualized representation: 856-873-3730

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