Wednesday, July 24, 2013

Spinning my wheels & going nowhere

Lately work has been making me want to scream in frustration. It is really difficult to get offers from the prosecution & then the ones I do get aren't that good. And they aren't very specific as to what my clients can expect.

A majority of my clients are willing to plead guilty to something (not necessarily what the charges are) and the biggest concern they have is what will happen to them. They want some sort of assurance about what they can expect if they plead guilty. A trial is unpredictable & a high risk venture. Clients who are pleading guilty generally don't want to have that unpredictability & uncertainty. The draw of a plea bargain isn't just a reduced charge. It's also knowing what will happen & how this will affect their lives. The draw of a plea is in large part the certainty that comes with it.

In other counties I have worked, the offers would be something akin to this:
Plead guilty to Ct 2, others dismissed. 365 days of jail with 10 days executed; probation for up to 5 yrs; 120 hours of community work service; complete a chemical dependency evaluation & follow the recommendations; random urinalysis; and $500 fine.

Very specific. Clients know exactly what will be required of them. They know exactly how much jail time they would have to serve. They could plan ahead & make arrangements for their jobs, families, etc.

And if a defendant wanted to try to change/modify something, I could go back to the prosecutor & say, "Hey, we are like 90% of the way to resolving this. Would you be willing to change this or that?" I could persuade them that a client deserved a break bc of x, y, z bc they were willing to listen & see the defendant beyond just the charges.

The prosecutors & I would often make the guilty plea contingent on the court following the agreement, meaning if the court didn't agree w/ what we had hammered out for a sentencing agreement & didn't want to follow it, the client could withdraw the guilty plea. Again, that creates certainty for the defendants & they know exactly what will happen.

But the current offers I am getting are generally like this:
Plead guilty to Ct. 2, others dismissed.

Plead guilty to Ct. 2, others dismissed. State will ask for 90 days of jail.

The client wants to know if they can get less jail time so I try to see if the prosecutor will agree to less. The most common response is: the state will argue for 90 (or whatever) & the defense can argue for less.

No agreement. No certainty.

This is especially problematic when dealing w/ situations where the state's request will be for a significant amount of jail and/or prison time & tells me we can argue for less or none. The difference btwn 24 months in prison & no time+probation is enormous! And a huge gamble for clients. Completely lacks any certainty or feeling like they know what to expect.

When the plea offers are fraught with as much uncertainty & anxiety as going to trial, it makes it difficult for a client to decide what to do. I can't tell them what to expect to happen @ sentencing, which is ultimately what they want to know. I can't tell them that if they plead guilty, here is exactly what will happen to them.

The offers now are generally non-negotiable. Every response seems to be "I won't agree to that but you can argue it @ sentencing." It makes it extremely difficult to resolve cases bc defendants want to know what will happen. They are scared, they are worried, and they are confused. They want to know what this is going to do to their lives. And a good plea offer is one that lets them know exactly what to expect.

I feel like I am spinning my wheels & accomplishing nothing most of the time now in this new area. The culture is so dramatically different than I am used to. I am starting to dread my job bc I feel like I am just beating my head against a wall in trying to plea negotiate. It's exhausting.

I wish the prosecution would work w/ me more. I am a pretty reasonable attorney. My offers aren't "dismiss!" I understand what is reasonable to request & reasonable to expect. And I know how to tell my clients what is or isn't reasonable. But the other side isn't interested in working with me, it seems. And it's making me want to scream. 


  1. So the recs you are getting are basically all "blind plea or trial"? Because there is no deal if there's anything left to argue at sentencing.

    1. That's my thoughts on it, too! They apparently think that if they tell you what they would ask for (usually the guidelines sentence anyway) that's enough to count as a "deal." Whatever...