The plea agreement process is where the prosecutor, the defense, and the judiciary agree to bypass trial and exchange a guilty plea for the same or in some cases a lesser sentence. The plea agreement process is a vital one to our judicial system; 95% of the cases in the nation are adjudicated by plea negotiations. Plea bargaining is important because it allows the prosecutor to process more cases in less time, and to save judicial resources. The National District Attorneys Association's National Prosecution Standards 66-72 outline how plea agreements should be determined.
Propriety of Plea Negotiation and Plea Agreements
This section gives the state the authority to enter into plea negotiations, and describes the types of plea arrangements.Availability for Plea Negotiation
This section describes how the prosecutor must be willing to enter plea arrangements.Factors for Determining Availability and Acceptance of Guilty Plea
This section describes the factors the prosecutor is to consider when negotiating a plea arrangement.Fulfillment of Plea Agreements
This section describes the rules the prosecutor must abide by when engaged in plea arrangements.Responsibility of Court
This section describes the court's role in the plea arrangement, and outlines it role in deciding on the plea arrangement.Record of the Plea Agreement
This section declares that the plea arrangement must become part of the record.Conditions for Plea Acceptance
This section describes the prosecutor's ability to set conditions onto the plea agreement offer.
Propriety of Plea Negotiation and Plea Agreements
66.1 Propriety
Where it appears that the interest of the state in the effective administration of criminal justice will be served, the prosecution, while under no obligation to negotiate any criminal charges, may engage in plea negotiation for the purpose of reaching an appropriate plea agreement.66.2 Types of Plea Negotiations
The prosecution, in reaching a plea agreement, may agree to one or more of the following dispositions, depending on the circumstances of the case:
a. To make or not oppose appropriate recommendations concerning the sentence which may be imposed if the defendant enters a plea of guilty or nolo contendere, or
b. To seek or not to oppose dismissal of an offense or offenses charged if the defendant enters a plea of guilty or nolo contendere to another offense or offenses supported by the defendant's conduct; or
c. To seek or not oppose dismissal of other charges or potential charges against the accused if the defendant enters a plea of guilty or nolo contenders; or
d. To seek or not oppose dismissal of the offense charged, or not to file potential charges, if the accused, when counseled by his attorney, agrees not to pursue potential civil causes of action arising therefrom against the victim, witnesses, law enforcement agencies or personnel, or the prosecutor or his staff or agents.66.3 Uniform Plea Opportunities
Similarly situated defendants should be afforded substantially equal plea agreement opportunities.Availability for Plea Negotiation
67.1 Prosecution Availability
The prosecutor should make known a policy of willingness to consult with the defense concerning disposition of charges by plea and should set aside times and places for plea negotiations, in addition to pre-trial hearings. The prosecution should be available for plea negotiations but need not enter into such discussions on the telephone and may require the setting of a definite appointment.Factors for Determining Availability and Acceptance of Guilty Plea
68.1 Factors to Consider
Prior to negotiating a plea agreement, the prosecution should consider the following factors:
a. The nature of the offense(s);
b. The degree of the offense(s) charged;
c. Any possible mitigating circumstances;
d. The age, background, and criminal history of the defendant;
e. The attitude and mental state of the defendant at the time of the crime, the time of the arrest, and the time of the plea discussion;
f. Sufficiency of admissible evidence to support a verdict;
g. Undue hardship caused to the defendant;
h. Possible deterrent value of prosecution;
i. Aid to other prosecution goals through non-prosecution;
j. A history of non-enforcement of the statute violated;
k. The age of the case;
l. Likelihood of prosecution in another jurisdiction;
m. Any provisions for restitution;
n. The willingness of the defendant to waive his right to appeal; and
o. The willingness of the defendant to waive (release) his right to pursue potential civil causes of action arising from his arrest against the victim, witnesses, law enforcement agencies or personnel, or the prosecutor or his staff or agents, where such willingness is concurred in and recommended by the defendant's counsel.
p. With respect to witnesses, the prosecution should consider the following:
(1) The availability and willingness to testify;
(2) Any physical or mental impairment;
(3) Certainty of identification;
(4) Credibility of the witness;
(5) The witness's relationship with the defendant;
(6) Any possible improper motive of the witness;
(7) The age of the witness;
(8) Undue hardship of the witness caused by testifying.q. With respect to victims, the prosecution should consider those factors identified above and the following:
(1) The existence and extent of physical injury and emotional trauma suffered by the victim; and
(2) Economic loss suffered by the victim.68.2 Unique Circumstances
The prosecution should be certain that all cases are determined individually and on their own unique facts and circumstances and not solely on the basis of a policy pertaining to the offense or the offender.68.3 Police Input
The prosecution should examine and take into consideration the circumstances of the arrest and the attitude of the arresting officer, which may include:
a. The time and place of the arrest; and
b. Whether the arrest was made pursuant to a warrant, after several attempts to find the accused, or the accused surrendered individually.68.4 Innocent Defendants
The prosecutor should always be vigilant for the case where the accused may be innocent of the offense charged.Fulfillment of Plea Agreements
69.1 Prosecutor's Limits
The prosecution should not make any guarantee concerning the sentence which will be imposed or concerning a suspension of sentence; the prosecution may advise the defense of the position prosecution will take concerning disposition of the case, including a sentence that the prosecution is prepared to recommend to the court based upon present knowledge of the facts of the case and the offender (including his criminal history). If the facts known to the prosecution change materially prior to sentencing, prosecution is not bound by such representation.69.2 Implication of Authority
Prosecution should avoid implying a greater power to influence the disposition of a case than prosecution actually possesses.69.3 Inability to Fulfill Agreement
If the prosecution is unable to fulfill an understanding previously agreed upon in plea negotiations, the prosecution should give prompt notice to the defendant and cooperate in securing leave of court for the defendant to withdraw any plea and take such other steps as would be appropriate to restore the defendant and the prosecution to the position they were in before the understanding was reached or plea made.69.4 Rights of Others to Address the Court
The prosecutor should make clear that he has no control over the right of the victim or arresting police officers to make statements to the court at the time of the plea or sentencing, if they wish to do so.70.1 Court's Role
The trial judge may not participate in plea discussions.70.2 Acceptance of Plea
The court should accept a plea negotiated by the parties when the interest of the public in the effective administration of justice would be served.70.3 Court's Decision on Concessions
When such a plea is tendered and the accused is questioned, the trial judge should reject or accept the plea of guilty on the terms of the plea agreement, but notwithstanding a negotiated plea, the trial judge should reach an independent decision on whether to grant charge or sentence concessions.70.4 Rejection of Plea Agreement
The court may postpone its acceptance or rejection until it has received the results of pre-sentence investigation. If the court rejects the plea agreement, it should so advise the parties in open court and then call upon the accused to either affirm or withdraw the plea.71.1 Record of Agreement
Whenever the disposition of a charged criminal case is the result of a plea agreement, the prosecutor should make the existence and terms of the agreement part of the record.It is recommended that the defendant acknowledge the voluntary, knowing, intelligent and understanding nature of the agreement in open court. The prosecutor should maintain the reasons for the disposition in his case file.
Conditions for Plea Acceptance
72.1 Conditional Offer
Prior to reaching a plea agreement and subject to the standards herein, the prosecutor may set conditions on a plea agreement offer, such as acceptance within a specified time period which would obviate the need for extensive trial preparation.