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 Plea Agreements 

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Michael Santos

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Develop an understanding of plea agreements by reading cases that influenced the length of time others have served and mitigation strategies.

Understanding Plea Agreements:

Every citizen has a responsibility to abide by the law. Yet with more than 4,000 criminal statutes in the United States Code, people can break laws without any intent or knowledge. Prosecutors may launch a criminal case, alleging that the person knew or should have known that his or her actions violated the law.

Every year, prosecutors in the Department of Justice bring more than 80,000 criminal cases against people. The U.S. Constitution provides that if the government charges a person with a crime, the person may bring the case to trial, forcing the prosecutor to prove the case beyond a reasonable doubt. Although a person could argue that since he or she did not have any intent to break the law, the government should have brought a civil rather than a criminal case. Yet when a person exercises his or her right to a trial, and the judge or jury convicts the person, sentences will be more severe.

For this reason, a person should develop a better understanding of plea agreements and mitigation strategies. We recommend readers review our article and watch our video on mitigation strategies:

Understanding Plea Bargaining:

Most criminal cases do not go to trial. Our judicial system does not have the capacity to preside over more than 80,000 criminal cases each year. According to articles we’ve read, prosecutors resolve more than 90% of all criminal cases without a trial. In some cases, judicial advocacy will result in a judge dismissing charges. Sometimes effective mitigation strategies will persuade a prosecutor to move the court to dismiss the charges. In most cases, prosecutors resolve criminal cases with a plea deal.

Some people refer to a plea deal as a plea bargain. In our experience, there isn’t much bargaining. Prosecutors hold a tremendous amount of power, as their decisions can put a person’s liberty on the line. In civil cases, people may be more inclined to put the plaintiff to a test. An adverse finding may result in financial sanctions or injunctions, but a person can recover from those with hard work. With criminal cases, prosecutors strive to convict and take a person’s liberty. Each of us has a limited amount of time on earth, and few people want to spend that time locked in jails or prisons.

With plea bargains, prosecutors seek to settle cases without having to go through the burden of a criminal trial. They want convictions. People should anticipate that prosecutors want convictions more than justice. Convictions represent a victory for prosecutors. If a person or case brings publicity, that conviction can help a prosecutor to advance a career. When prosecutors get to a conviction quickly, without having to prepare for a trial, they’re free to argue that they’re more effective. Such effectiveness can result in more lucrative offers when they transition to private practice, or when they pursue career aspirations.

To paraphrase Zig Zigler, if a person can help other people get what they want, that person may be able to get what he wants. Remember that many prosecutors want convictions. A plea agreement can help a prosecutor. In many cases, people that face criminal charges accept plea agreements in exchange for something. Some of those exchanges may include:

  • A prosecutor’s agreement not to bring charges against a family member.
  • Any agreement by the prosecutor to drop certain charges.
  • The government may agree not to bring additional charges against the defendant.
  • The government may agree to allow a person to keep specific assets.
  • Prosecutors may stipulate to change the charge to qualify the person for leniency.

Any number of factors can influence a plea agreement. Understanding plea agreements requires a person to start by defining success. A person should always begin with an understanding of the best possible outcome. The best possible outcome isn’t always consistent with what the person wants. No person wants to face criminal charges. If those charges come, on the other hand, a person must decide what is possible.

For example, consider all that can follow a criminal conviction:

  • If a person puts the government to the test of a trial, and a judge or jury convicts the person, the sentence will likely be more severe than if the person accepted a plea agreement.
  • A lawyer would need to invest hundreds of hours to prepare an effective trial strategy. With fees that exceed $500 per hour, a criminal trial could easily result in six- or seven-figure legal fees.
  • A criminal trial could take years to resolve, putting a person’s life in state of limbo.
  • The stress of a criminal trial could bring ancillary problems, such as disruption to the family, loss of sleep, and lead to a lower quality of life.

When honest people face a criminal charge, they sometimes deny that they did anything wrong. They may not fully understand the costs and complexities. When people understand more options to work toward a mitigation strategy, they may consider a plea agreement as a more viable option.

To understand plea agreements, people may want to read Rule 11 the Rules of Criminal Procedure. Different types of plea agreements have different implications. A defense attorney may or may not take the time to explain the different types of plea agreements.

Understanding Blind Plea Agreement:

At the end of the day, a judge will decide the appropriate sentence. In some cases, the prosecutor and the defendant will come to agree to a “blind plea agreement.” With a blind plea agreement, the person will agree to plead guilty without a binding sentence. The prosecutor may agree to charge the person that puts some limitations on the sentence. For example, in exchange for the blind plea, the prosecutor may agree to a charge that carries a lower statutory maximum, or avoids a mandatory-minimum sentence, or does not expose the person to egregious enhancements for loss amounts.

At sentencing, the judge would listen to arguments from both the prosecutor and the defense attorney. Then the judge would decide the appropriate sentence. The prosecutor would likely argue for a sentence within the guideline range. The defense attorney would likely argue for a lower sentence, within the statutory range. If the case requires a mandatory minimum sentence, or a consecutive sentence, the defense attorney would have some limitations. For example, see our article on aggravated identity theft, which carries a requirement for a consecutive sentence:

The only way to get around mandatory-minimum sentence would be with the prosecutor’s agreement to request a 5k.1 motion, pursuant to Title 18 USC 3553(e). Under section 5k.1 of the United States Sentencing laws, a judge has discretion to sentence a person to a term that is lower than statutory sentencing laws.

(e) Limited Authority To Impose a Sentence Below a Statutory Minimum.—

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

Title 18 USC Section 3553 (e)

To qualify for a 5k.1 motion, a person would have to provide “substantial assistance in the investigation or prosecution” of others.

Understanding a Rule 11(c)(1)(C) Plea Agreement:

Some people want to make sure that, in exchange for pleading guilty, the will bind the judge to a specific sentencing range. In such cases, the defense attorney can pursue a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

Plea agreements under this Rule binds the court to either accept or reject the plea agreement. The judge will still have the discretion to impose a sentence, but if the judge chooses to go beyond what the government wanted, he will tell the defendant. The defendant can then choose to withdraw from the plea agreement. If the judge finds any part of the plea agreement unacceptable and the defendant chooses to proceed, the judge will tell the person that he or she could face a harsher sentence. In most cases, however, if the prosecutor offers this kind of plea agreement, the judge will go along with it.

Some U.S. Attorneys Offices do not offer this type of plea agreement. And some defendants may not want this type of agreement—because this type of agreement may remove possibility for a person to argue for a downward departure. In most cases, however, if a person can secure a plea agreement under Rule 11(c)(1)(C), the plea agreement works in the defendant’s favor. Such plea agreements may go along with a 5k.1 motion, which results in a recommendation for leniency from prosecutors.

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