Plea Bargaining May Be No Bargain – Consult A Defense Attorney

A substantial number of criminal cases that are prosecuted in Florida result in some type of conviction by way of a plea bargain. As noted by the American Bar Association, this typically involves prosecutors offering a deal that allows the defendant to plead guilty to a lesser crime than what was originally charged. However, many of these are not truly “bargains” at all. A dedicated, experienced criminal defense attorney should carefully weigh whether you might be better served taking the case to trial. If not, he or she should be skilled and adapt at the plea bargain negotiation process.plea bargain attorney

The issue with the plea bargain process is that, as noted in a recent analysis by The Atlantic, innocence isn’t always relevant to the outcome – particularly if you don’t have a good lawyer defending you. Approximately 94 percent of state-level criminal felony convictions and 97 percent of federal felony convictions are the result of a plea bargain. Estimates for misdemeanor cases are even higher. This highlights something our Fort Lauderdale defense attorneys often must explain to our clients: The vast majority of criminal cases don’t go to trial. Of course, those figures don’t include cases wherein the charges are dismissed prior to the trial or plea bargaining phase. But this is a reality that was underscored in the 2012 U.S. Supreme Court ruling of Missouri v. Frye, an important case that helped establish a defendant’s right to competent counsel when they are extended a prosecutor’s plea bargain.

Plea bargains can absolutely be advantageous to a defendant, particularly when the weight of the evidence against them is substantial. It’s also less costly for taxpayers because it costs a great deal of time and money to hold a criminal trial. But here’s the other thing plea bargains can do: Compel you to plead guilty to a crime you didn’t commit.

Prosecutors can have a lot of power in these negotiations, and one tactic they can employ is to threaten defendants with something referred to as “the trial penalty.” They make it clear to the defendant refuses the plea deal and insists on taking the case to trial and are convicted, they will face more serious charges and harsher sentences. Public defenders – while sometimes very good attorneys – are often overworked and lack the time and resources to even think about taking more than a small number of these cases to trial. Some complain about assembly-line justice, “Meet ’em, great ’em and plead ’em.”

That said, plea bargaining can be a way for you to avoid harsh collateral consequences of the initial crime, though in some cases, it may not be reflective of what actually happened. It depends on your goals. For some, it’s no incarceration. For some, it’s avoiding conviction on a charge that carries a requirement of sex offender registration. For others, it’s avoiding conviction on a charge that might require them to be deported. Sometimes what is initially charged and what is pleaded to can be wildly different. For example, the New York Court of Appeals ruled not long ago there was no issue that a defendant originally charged with cruelty to animals ultimately pleaded guilty to criminal trespass – despite the fact that there was no fact pattern to establish he’d committed the latter.

Theoretically, the rules of criminal procedure – both state and federal – would prevent this kind of outcome. A U.S. Supreme Court dissent written in a 1995 case argued a plea should require a legitimate factual basis. But then 15 years later, the U.S. Supreme Court ruled defense attorneys were required to advise their clients about the potential immigration consequences of accepting a plea bargain. Justice Paul Stevens instructed defense attorneys and prosecutors to “negotiate creatively” to help a defendant avoid deportation. In the particular case, Padilla v. Kentucky, defendant was accused of drug trafficking and the reality is almost all drug offenses are deportable. So how do we get creative? Sometimes. as noted by a recent article in Slate, it means negotiating a plea deal in which defendant pleads guilty to an offense that has no basis in fact. Some have referred to this as “the guilt problem.”

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Plea Bargaining’s Guilt Problem, June 7, 2018, By Thea Johnson,

More Blog Entries:

Florida’s 3rd DCA: Keep All Elements of Your License Plate Visible, Or Risk Traffic Stop, June 5, 2018, Fort Lauderdale Criminal Defense Attorney Blog

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