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A pre-charge or pre-indictment plea agreement happens prior to indictment or formal charges and should be carefully considered as an option.
INTRODUCTION
Plea agreements are a mainstay of our criminal justice system. In fact, the vast majority of criminal cases in the United States get resolved by plea agreements at both the federal and state levels.
Federal criminal cases overwhelmingly favor the prosecution: 92% of federal cases result in a criminal conviction. Just not at a trial. According to the Administrative Office of the United States Courts, less than 3% of federal criminal cases go to trial. Instead, just about all federal criminal convictions end up in a plea deal. In 2019, 98% of all federal convictions came via plea agreements.
The same holds true for state criminal cases, where less than 5% of criminal cases (misdemeanors and felonies) go to trial. In 2012, the New York Times reported that 97% of federal cases and 94% of state cases end via plea bargain. The statistics have not changed much in recent years. Plea negotiations and plea agreements play a significant role in the outcome of most cases.
Plea agreements typically require that a defendant plead guilty in exchange for reduced charges or reduced prison time. Defendants who accept a plea agreement may forfeit their right to appeal as a condition of the deal. Prosecutors are reluctant to enter into plea agreements only to have the agreements challenged on appeal. Still, plea agreements are the preferred way for federal prosecutors to obtain criminal convictions while saving a criminal trial’s significant time and expense.
*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case.
TIMING OF PLEA DEALS
Plea agreements can occur at various stages of a criminal case: before formal charges or grand jury indictment, any time after an indictment but before trial, during a trial, or even post-trial. (In some instances, plea deals are orchestrated while on appeal, though this is much less common.) The timing of a plea deal impacts the relative bargaining power of the parties.
Pre-charge or pre-indictment plea agreements take place before there is a grand jury indictment or formal charge. While the specific criminal procedures can differ between federal and state criminal cases (and state-by-state), both systems offer the opportunity to negotiate pre-charge or pre-indictment plea deals. Given the right to be indicted by a grand jury, defendants wishing to enter a pre-charge or pre-indictment guilty plea must waive indictment.
*Pro-Tip: Criminal counsel should be familiar with all pre-charge plea deal options and discuss them appropriately with clients.
Why anyone would agree to plead guilty before getting indicted is a fair question. There are several reasons. For example, a defendant may recognize that the prosecution has solid evidence and may seek a pre-charge plea bargain to receive a lesser sentence. The defendant may want to cooperate with agents who are investigating other related cases. Other times, even a defendant who might have played a minor role in the crime will accept a plea agreement to resolve the matter quickly without a trial. A plea agreement will reduce a defendant’s risk of a lengthy federal prison sentence in most federal criminal cases. Also, federal prosecutors have thoroughly investigated their case and usually have substantial evidence against them before it reaches a trial stage.
SENTENCING ISSUES
Whether a pre-charge or pre-indictment agreement can include binding sentencing terms will vary in federal and state cases and state-by-state.
In federal cases, the judge ultimately decides on the appropriate sentence and is not bound by any agreement between the parties. Therefore, after entering into a pre-charge or pre-indictment plea agreement, the defendant will face sentencing at a hearing before the judge. At that time, the defendant will have an opportunity to argue for a reduced sentence and demonstrate the case for leniency. To be sure, the defendant will also ask the judge to consider the defendant’s willingness to enter into an early plea deal rather than put the government and the court through protracted proceedings.
Prior to the federal sentencing hearing, sentencing mitigation experts can help defendants prepare for the presentence investigation report investigation. Prison Professors, an Earning Freedom company, works alongside (not in place of) criminal defense attorneys to help clients proactively navigate through investigations and prosecutions. It’s our experience that more well-informed and proactive clients obtain better outcomes. Our team also helps clients prepare their mitigation narrative for the sentencing judge.
*Pro-Tip: Remember to consult legal counsel in connection with all aspects of a criminal case.
Each state has its own rules regarding the pre-indictment plea negotiation process. Whether the parties can negotiate a sentence that the judge will honor is a matter of state criminal procedure.
For example, New Jersey criminal procedure provides for a pre-indictment conference. A pre-indictment conference aims to resolve a matter before prosecutors present the case to a grand jury. At the pre-indictment conference, the prosecutor typically offers a plea deal to dismiss certain charges or reduce a charge to a lesser-included offense in exchange for the defendant’s guilty or no-contest plea.
Factors that influence the prosecutor’s pre-indictment plea offer include the severity of the crime, the strength of the evidence, and the defendant’s prior record. Judges will typically honor the parties’ agreement regarding the defendant’s sentence in the pre-indictment plea deal.
Not all states follow the same process as New Jersey. Clients should always consult counsel familiar with state criminal procedure in the applicable jurisdiction.
CONCLUSION
Criminal defendants must carefully weigh their options when the opportunity to negotiate a pre-charge or pre-indictment plea deal presents itself. This option is often available in both federal and state criminal cases and should be carefully considered. The odds are that the case will be resolved through plea negotiations down the road in any event.
In federal cases, the judge must still determine an appropriate sentence after accepting the plea deal. Sentencing mitigation experts can assist clients and counsel in preparing a compelling narrative for the sentencing judge.
