Plea Bargaining

In a criminal case decided earlier this year, Jessie Herald, a man who fathered seven children with six women and who faced several felony and misdemeanor charges in Virginia, accepted a very unconventional plea deal. The Commonwealth allowed him to undergo a vasectomy as part of his probation in exchange for dropping two of his misdemeanor charges. While the ethics of this plea deal have been hotly debated (let’s not forget the Virginia Sterilization Act of 1924), the good news is that most criminal defendants will never have to choose between life-altering surgery and jail time. Still, anyone facing criminal charges in Virginia should be aware of what to expect when it comes to plea bargaining.

The Basics

In a plea bargain, also known as a plea agreement or plea deal, the prosecutor generally agrees to reduce some of the defendant’s charges on the condition that he plead guilty to some or all of the charges filed against him. Sometimes, prosecutors will want the defendant to testify for the state in cases against other defendants as part of the plea bargain. The prosecutor can also recommend that the defendant receive a reduced sentence, although the judge is not bound by this recommendation.

Prosecutors are not required to offer a plea bargain in any case, although they often do as it saves them a considerable amount of time. Any plea bargain you may receive depends on several factors, including the seriousness of the charges against you, the strength of the evidence against you, the likelihood that the jury would find you guilty at trial, and even which prosecutor has been assigned to your case. Most plea agreements are in writing; they are treated as contracts between the prosecutor and defendant.


Why Do Plea Bargains Exist?

Plea bargaining removes the risk of going to trial for both the prosecutor and the defense, and it can serve as an agreeable compromise in many cases. It allows the state to conserve time and resources so that prosecutors can effectively manage a large caseload and the court system is saved the burden of conducting a trial on every crime charged. Additionally, some defendants would rather accept the certainty of being imprisoned for a relatively short amount of time than risk leaving their fate up to a jury and potentially receiving a much longer sentence.

Some have argued that the plea bargain allows defendants to get off too easily or that it is coercive. Plea bargaining does require defendants to waive the right to a jury trial, the right against self-incrimination, and the right to confront hostile witnesses, all of which are protected by the Fifth and Sixth Amendments. The Supreme Court, however, has repeatedly rejected arguments that plea bargaining is unconstitutional. See, e.g., Brady v. United States, 397 U.S. 742 (1970).

Should I Take a Plea Bargain or Go to Trial?

If you are offered a plea deal, it is entirely your decision whether to take it, although your attorney should give you candid advice as to whether the offer is appropriate. A plea bargain may or may not be in the defendant’s best interests, which is why an informed decision is so important. You should discuss any plea bargain with an attorney and carefully consider all the pros and cons before making a decision.

If you decide not to accept a plea agreement, be sure to hire an attorney who is not afraid to go to trial and zealously represent you. For a free consultation, contact The Law Office of David M. Smith today.


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