The Sixth Amendment to the United States Constitution provides every person accused of a crime the right to a speedy and public trial, and the due process clauses of the Fifth and Fourteenth Amendments provide that every element of a crime must be proven beyond a reasonable doubt before there can be any conviction. It’s a very high bar for the prosecution, so why do most criminal cases end in a plea agreement? In part, because a plea agreement allows the accused to participate in sentencing.
Let’s say you’ve been charged with a crime. As you read through the Discovery, you realize that the facts as presented in the police reports and witness statements are not flattering. You have the right to trial, where you can listen to the evidence the prosecutor presents, attack that evidence, confront witnesses, and mount a vigorous defense. You may win – it can be difficult for the prosecutor to prove every element of the crime beyond a reasonable doubt.
But what if you think you will likely be convicted by a judge or jury? That the evidence the prosecutor has against you is damning? It may be in your best interest to try to negotiate your charges and your punishment.
To save the time and expense of a trial, prosecutors often negotiate with defense attorneys to secure guilty pleas from clients charged with crimes. Sometimes the State is willing to drop charges down a notch, say from a felony-level to a misdemeanor-level crime, or maybe the State will agree to drop an aggravating factor, such as a High Test on an OUI charge, to allow the defendant to avoid jail time.
Maybe, in exchange for your guilty plea, the State will agree to a Deferred Disposition, where you initially plead guilty to your charge, but the court does not immediately enter a conviction. In that case, you may be subject to conditions such as random search and testing for alcohol or illegal drugs, substance abuse treatment, and counseling services, and if at the end of an agreed-upon period, the Court finds you successfully met those conditions, your case may be dismissed entirely or your charge may be reduced to a less serious offense. If you have not met those conditions, you will likely be convicted of your original charge and you may face additional sentencing. You can think of a Deferred Disposition as providing a reward for good behavior.
If your priority is to avoid jail time, you may be able to negotiate participation in an Alternative Sentencing Program (ASP) instead of serving a jail sentence for some charges. For example, if you are charged with Operating Under the Influence, you may be able to request that a mandatory jail sentence be served through an ASP, which is offered to first- and second-time non-violent offenders who perform community services for the equivalent of a jail sentence while staying on-site, under supervision, at a safe location like a school.
Whatever you decide, know that you give up your right to a trial when you plead guilty, and you will have a conviction on your record. However, if you and your attorney believe you will likely be convicted in the end, it may be in your interest to have a say in the sentence you will receive through negotiation before trial.
Read the above column as published in the Portsmouth Herald.