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Plea bargaining in Colorado is at the same time very complex and critical to the best possible result in any criminal case. This is a three part series that addresses all aspects of plea bargaining.
Plea bargaining is a form of negotiation by which the prosecutor and defense counsel enter into an agreement resolving one or more criminal charges against the defendant without a trial. The United States Supreme Court has upheld the constitutionality of plea bargaining, encouraged the practice, 1 and summarized its benefits as follows:
The public is protected from the risks imposed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.
Plea bargaining may occur before the defendant is formally charged or after formal charges have been brought.
Generally, plea negotiations result in one or more of the following:
(1) the prosecutor agrees not to charge the defendant;
(2) the defendant pleads guilty or nolo contenderi to a reduced charge or lesser included charge;
(3) the defendant pleads guilty or nolo contendere to a particular charge in exchange for the dismissal of other charges;
(4) the defendant pleads guilty or nolo contendere as charged or to a lesser charge in return for a sentencing concession by the prosecutor;
(5) the defendant enters a conditional plea of guilty or nolo contendere, reserving the right to appeal the judgment and withdraw his plea in the event that the appellate court affords him relief on the adverse determination of a specified pretrial motion.
Any one of these bargains might be conditioned upon the defendant’s agreement to certain conditions such as:
The goals of plea bargaining are twofold.
First, the defense attorney and the prosecutor seek the most favorable disposition for their respective clients.
Second, each side seeks to obtain as much discovery as possible about the other side’s case in the event plea negotiations break down and the case goes to trial.
Plea bargaining “style” is to be distinguished from plea bargaining “strategy,” even though the two are often intertwined. Plea bargaining style refers to counsel’s interpersonal behavior in the plea bargaining setting. Plea bargaining strategy, on the other hand, refers to the conceptual approach taken by counsel in conducting plea bargaining.
There are three basic types of plea bargaining styles: (1) competitive (hardball), (2) cooperative (softball), or (3) a combination of competitive and cooperative (hardball and softball).
The competitive style is typically characterized by aggressiveness and a confrontational approach, where “winning” is everything, personal feelings and interpersonal relationships are viewed as essentially irrelevant, and threats, intimidation, and Machiavellian tactics are frequently employed.
The cooperative style, on the other hand, places a premium on interpersonal relations, and is characterized by an effort to find common ground, satisfy shared interests, and promote understanding between the parties.
The competitive-cooperative style represents a middle ground between hardball and softball. Under this style, realistic concessions are made to satisfy the objectives of both parties, and conflicts are resolved through compromise or some reasoned solution that maximizes as many of the parties’ conflicting objectives as possible in a friendly, considerate, but firm manner.
And there are two basic types of plea bargaining strategies:
(2) problem solving.
Under the “adversarial” approach, each party engages in a guarded process of manipulating fact and law rationales to make and defend plea offers, counteroffers, concessions, and compromises in an effort to achieve the best bargain possible. The process generally focuses on maximizing the gain of one party at the expense of the other, and the bargaining is typically shaped by an estimate of the likelihood of the outcome at trial weighed against an estimate of various costs associated with litigating the matter.
In contrast, the “problem-solving” approach involves a conscientious identification and sharing of each side’s interests, needs, and objectives, after which the parties engage in non-critical “brainstorming” to propose a variety of creative solutions that may be accepted, rejected, or modified to satisfy or accommodate as many of the parties’ interests and objectives as possible.
Problem-solving bargainers engage in a largely cooperative and collaborative process that strives to create mutually satisfactory solutions that are not necessarily limited to traditional judicial remedies.
In the vast majority of plea negotiations, the defense attorney and prosecutor combine an adversarial strategy with either a cooperative or competitive-cooperative style. The adversarial approach is typical because plea bargains are largely made on a cost-benefit analysis that reflects tradeoffs by each side to avoid the financial and emotional costs and uncertainty of a trial.
While the process of plea bargaining is not, strictly speaking, a zero-sum game where each gain to one side is a corresponding loss to the other, each side nevertheless seeks to maximize its own gain, and fact and law rationales are manipulated to advance and defend positions. The end result carries benefits to both sides.
The prosecution usually secures the certainty of a conviction or some other action by the defendant that acknowledges responsibility for his conduct, and the defendant’s exposure to the consequences of the criminal process is usually minimized from what it would be if he were convicted at trial as charged.
The pure problem-solving approach of “brainstorming for mutually beneficial solutions” is largely foreign to the plea bargaining process, albeit this does not mean that relatively creative bargains might not be fashioned in certain cases. From the defendant’s standpoint in particular, constitutional rights such as the privilege against self-incrimination, due process, and effective assistance of counsel necessarily foreclose the complete and open exchange of information upon which problem solving is based.
Moreover, the prosecutor’s discretion in plea bargaining is often dictated by internal prosecutorial policies, or limited by statute and what will be acceptable to the court. In short, once the criminal process has been brought to bear against a defendant, the nature of the situation is inherently adversarial and so-called “creative solutions” are limited.
The vast majority of plea bargains are negotiated in a cooperative or competitive- cooperative style. Because prosecutors are in exclusive control of the charging process and possess far greater resources than are available to defendants, it is impossible to “brow beat” the prosecutor into a plea bargain through a hardball style.
The negotiating power of the prosecutor is almost always greater than that of the defense attorney. Moreover, prosecutors and defense attorneys typically have long-standing professional relationships that would be impaired by Machiavellian interactions. Finally, because every plea bargain is part of the judicial process where both sides have a duty of fair dealing and candor, civility between the prosecutor and defense counsel is expected.
As a practical matter, the prosecutor’s usual objective is to obtain a plea that is as close to the result that would be obtained if the defendant were convicted as charged. However, this general objective will be affected by a variety of interests and the following factors:
Although probable cause that the defendant committed the particular offense may be strong, no conviction can be sustained on mere suspicion or conjecture, or under the preponderance of the evidence standard which would be sufficient to sustain a civil verdict. Thus, the relative strength of the prosecution’s case, the likelihood of an appealable issue, and the relative trial skills of defense counsel and the prosecutor will all be integral to the decision whether to plea bargain and, if so, what plea to propose.
The nature of the crime in terms of the harm or injury that occurred, the need for deterrence, and the public’s attitude toward the crime will affect the prospects for a plea bargain. Generally, the more heinous or aggravated the crime, the less likely the prosecutor will enter into a plea bargain that is favorable to the defendant. On the other hand, if the offense was committed under circumstances where little or no harm occurred and public sentiment against the crime is not great, the prospects for a plea bargain with a more lenient disposition are enhanced.
Related to the nature of the crime and public sentiment are the feelings of the victim and the police. While neither the victim nor the police have any legal authority to dictate the prosecutor’s discretion in plea bargaining, their views are often given great weight by a prosecutor in plea negotiations.
The background of the defendant, including his age, employment, family circumstances, health, “respectability,” prior criminal record, and whether he is on bail or in jail pending trial, are often integral factors in plea bargaining. For example, a youthful or first offender is much more likely to obtain leniency than an adult recidivist. A defendant who has been in jail pending trial may be deserving of a sentence for time served. In short, the existence or absence of mitigating factors about the defendant and his role in the crime often has an important bearing upon plea bargaining.
Virtually all prosecutors establish plea policies in particular types of cases. These policies are often tied to public sentiment about certain classes of crimes or to sentencing guidelines established by statute . Thus, the extent to which plea bargaining may be available in a particular case often depends upon where the crime fits into the hierarchy of the types of cases the prosecutor is committed to take to trial or bargain away in light of pre-established prosecutorial policies or statutory guidelines. In addition, Colorado has adopted many statutes that limit or preclude the prosecutor from plea bargaining in particular cases..such as in domestic violence cases.
All prosecutors must operate under budgetary, time, and personnel constraints within their own offices and in the face of limited resources available to the police and other investigative agencies. In addition, prosecutors are affected by limited judicial resources in terms of the number of available judges, courtrooms, and support personnel.
These constraints, along with statutorily mandated speedy trial rights (where applicable), require prosecutors to prioritize the types of cases that will be prosecuted and to use plea bargaining as a device to control overall case management. To the extent to which a particular case or class of cases strain prosecutorial or judicial resources this issue may have a significant effect on plea bargaining.
Prosecutors will sometimes enter into plea bargains in exchange for the defendant’s cooperation. This cooperation may take the form of the defendant either assisting in an on-going investigation or testifying for the prosecution against another defendant. The extent of the defendant’s willingness and ability to cooperate can be a critical factor in plea bargaining.
In deciding whether to enter into a plea bargain, prosecutors, are frequently motivated by political considerations. Many prosecutors are elected officials or are appointed by the executive branch. They are invariably influenced by the media and public opinion. Many prosecutors use their position as a stepping stone toward attaining other political ambitions.
A prosecutor’s attitude toward plea bargaining in a particular case may be affected by purely personal experiences. For example, a prosecutor may be much less inclined to enter into a plea bargain in a case where he knows the victim or in a type of case where he has himself been a victim.
The defendant’s ultimate objective in plea bargaining is to have the charge(s) against him dismissed. Failing that, his overall objective is to minimize the consequences of any conviction by:
(a) having the number of charges against him reduced;
(b) pleading to a reduced charge (e.g., to a lesser included offense or to a misdemeanor rather than a felony);
(c) avoiding any active incarceration or minimizing the time to be served in prison;
(d) obtaining treatment or rehabilitation.
These objectives and the reasons or interests underlying them may be influenced by the following factors:
The stronger the prosecution’s case is against the defendant the more likely he will enter a plea in exchange for an outcome that would be less harsh than that which he would receive if convicted at trial. Conversely, if the prosecution’s case is weak or the defendant’s defense is strong, the defendant’s incentive to enter into a plea agreement is markedly reduced.
If the defendant is in fact innocent of the charge, it is unlikely he will agree to any plea. In extraordinary circumstances, however, an innocent defendant may nevertheless choose to enter a guilty plea without admitting guilt, and such a plea may be accepted by the court if made intelligently and the prosecution has strong evidence of guilt.
The cost of hiring defense counsel may be considerable. In addition, the criminal process may be lengthy and carry significant emotional costs for the defendant and his family in terms of uncertainty, anxiety, embarrassment, or unwanted publicity. All of these factors will affect the defendant’s decision to enter into a plea bargain.
The desire to avoid time spent in prison is a major inducement for defendants to plea bargain. If the defendant is incarcerated on the charge prior to trial, a plea bargain that would include a sentence for time served is highly attractive. Similarly, pleading to a lesser charge, or even as charged, will be attractive if the plea is exchanged for a sentence that is lighter than would otherwise be the case if the defendant were convicted at trial.
The nature of the guilty plea (e.g., whether to a felony or misdemeanor) may affect the defendant’s probation or parole, employment or license, eligibility for certain governmental benefits, immigration status, or civil liability. These matters may affect the defendant’s decision to plead.
The nature of the concessions required by the prosecutor in return for a particular plea may be of critical importance. For example, the defendant may have to decide whether he would be willing to cooperate with the government in an on-going investigation or otherwise act as a “snitch” by testifying against one or more co-defendants. Similarly, when the plea is entered, the presiding judge may require the defendant to make an allocution that might involve an admission of guilt, inculpate a co-defendant, or expose the defendant to civil liability.
While a prosecutor may not threaten additional prosecution or habitual offender status for “vindictive” purposes, he may threaten to bring additional charges against the defendant if the defendant does not accept a particular plea offer, so long as there is probable cause for those charges. Thus, the possibility of facing additional charges or being sentenced as a persistent or habitual offender may induce the defendant to enter into a plea bargain.
There may be any number of purely personal or philosophical motivations for a defendant to plead guilty. Quite often, a defendant will decide to plead guilty simply out of remorse or a sense of taking responsibility for his actions, and hope that his forthright attitude will curry leniency with the judge.
What if I want to plead guilty?
• Deferred Prosecution: The Prosecutor agrees not to prosecute you for a certain period of time, with conditions such as you commit no new crimes or complete a program
• Diversion: The Prosecutor dismisses your case after you complete a treatment program or some other supervised program.
• Deferred Judgment: You plead guilty to the charge, BUT, the judgement of conviction is deferred, and you go on probation and if you complete the terms of probation, the guilty plea is withdrawn and the case is dismissed.
• Reduced Charges: You plead guilty to a reduced charge than what you were originally charged with. Sometimes there is an agreement to probation or a set term of confinement.
• Split plea: You enter a guilty plea to a misdemeanor charge and a conviction is entered on the misdemeanor while you get a deferred judgment on a felony charge.
• Sentencing Agreements: You and the Prosecutor agree to a certain punishment in exchange for your plea of guilty.
• Open Sentence: You either go to trial or plead to the Court without any recommendation from the government
H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277