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The Necessary Evil of Plea Bargaining

Plea bargaining is the process of negotiating a plea between the defendant’s criminal defense attorney, the prosecuting attorney and sometimes the judge.  Generally, the prosecution or the State offers concessions to the defendant in exchange for a guilty plea. The concessions can be agreeing to a certain plea or dismissing some charges.  Usually the defense lawyer is looking for a lesser charge, preferably amending a felony charge to a misdemeanor charge.  On numerous occasions my law office has been able to negotiate outright dismissals and/or amendments of a felony charge to a misdemeanor. Sometimes the district attorney will allow the defendant to enter into a pre-trial diversion program as a part of the plea agreement.

The vast majority of criminal prosecutions are resolved by plea bargaining. The reason for this is fairly simple – there is no way the State can afford to try all of the criminal cases on the trial docket. There are just not enough prosecutors or judges to handle such a case load.  Plea bargaining, on the other hand, results in a prompt and usually final disposition of the defendant’s case

From the stand point of the defendant, when there is strong evidence against him or her, plea bargaining is the opportunity to minimize exposure to punishment and to avoid the cost and burdens of a trial. In some cases, confessing to a certain crime demonstrates a positive step for the defendant’s rehabilitation which can result in a lesser punishment.   It also avoids lengthy pre-trial confinement for those who are unable to bond out or who are denied bail.  From the stand point of the prosecutor, the conviction is obtained without having to use judicial prosecutorial resources.

It should be noted that while the State may grant concessions for a plea, the State also has the ability to threaten more punitive treatment for a defendant who refuses to plea.  In the well known U.S. Supreme court case of Bordenkircher v. Hayes, the prosecuting attorney offered and recommended a five year sentence if the defendant agreed to plead guilty. If the defendant did not accept the plea, the prosecutor threatened to bill him as a habitual offender. The defendant refused the plea and was convicted at trial, receiving a life sentence after the prosecutor billed him as a habitual offender.  The U.S. Supreme Court did not find a violation of due process since the prosecutor’s threat to charge under the habitual offender law was a legitimate use of leveraging and plea bargaining.

There are many experienced criminal defense attorneys in Louisiana — make sure you hire a lawyer who understand how and when to successfully plea bargain. Your lawyer needs to know when the district attorney is offering you a plea agreement that is in your best interest.  A negotiated plea agreement can be a better option than a criminal trial if the plea keeps you out of jail or keeps a felony off your record.  On the other hand, your attorney also needs jury trial experience in circumstances where taking your case to trial would be more beneficial for you.

Thomas Alonzo

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