If the Government is bad at plea offers the justice system breaks down.

 

There are far too many cases on a given docket in a county or district court in most cities for the Government to try every single case. As such, disposing of some cases by plea offers becomes one method the Government uses to remove some of these cases from the docket.

 

However, a plea offer must be better than the result the defendant could expect at trial. This is as much a “common-sense” proposition as it gets. For example, if the typical punishment at trial for a DWI 1st is probation, then a plea offer on a DWI 1st necessarily should be for probation—and for probation at better terms (lower fine, shorter duration, lower number of community service hours, etc.) than the defendant is likely to get at trial.

 

If the plea offer is worse, there is no reason for the defendant to not go to trial. Criminal defense lawyer should be signing up for trial dates en masse.

 

Consider: a plea offer asks the defendant to waive his Constitutional right to a trial, his right to appeal, and a host of other fundamental rights based in our State and Federal Constitutions. It asks him to admit guilt, without forcing the Government to put on a shred of evidence at trial against him. I do not advise my clients to forego these constitutional rights without considerable thought. If we can get a better deal at trial, then we go to trial. Simple as that.

 

The bottom line: a plea offer is an inducement—it is meant to be enticing enough to the defendant that he would give up his constitutional right to trial, and plead to the charges. If the terms of the offer are the same as, or worse than, what the defendant would get at trial, there is NO INCENTIVE TO TAKE THE PLEA.

 

This is simple, but you’d be shocked at how many courts seemingly haven’t stumbled upon this concept. Which courts? Look for the ones with the unwieldy dockets.