To Plead Guilty Or Not: The Ultimate Question

National Association of Criminal Defense Lawyers (NADCL) sounded an alarm about the 6th Amendment right to a fair trial by a jury of our peers.  The reason; 97% of federal cases that get to an indictment end with a plea of guilty.  Why?

Prosecutors have a lot of power.  In fact, US District Judge Jed Rakoff (SDNY) wrote a great piece on how prosecutorial powers have gotten out of control leading, he believes, to innocent people pleading guilty.  Prosecutors hold all the cards and often enter talks with defense counsel on “a deal.”  Any good defense attorney is going to listen to the deal, but they can listen and pass it along to their client.  An example of a deal is pleading to a lesser charge in exchange for a guilty plea.  Rakoff’s example is as follows:

… the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more.

The same thing could happen in a white collar crime, sex offense, etc.  The prosecutor will say we can charge you for a little, or we can move forward and charge you with a lot.  One hope that agreeing to plead guilty gives one lesser time in prison (the main thing every defendant worries about the most).

If a defendant says “No deal,” the option is to go to trial … so now what?  Sadly, it means a hell of a lot more money to pay for a defense and a legal war with the US government … but you will get your day in court.  However, if you are found guilty, the punishment could be much more harsh (years in prison, additional fines/restitution).

The National Association of Criminal Defense Attorneys (NACDL) recently issued a paper on the extinction of trial by jury.  Their primary conclusion as to why there are so few trials, “… There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.

So what goes into the calculus of pleading guilty?  After all, if you read the two citations above you are probably wondering why 100% of cases don’t conclude with a plea.  Here are some reasons to fight on at trial:

  1. You Are Innocent – Our justice system is not perfect but innocent people are found innocent.  The press usually portrays someone who has been found not-guilty as someone who “got of.”  In my book, you’re innocent.  We have rights in this country and the right to fight in court for one’s freedom is a fight for all Americans.
  2. You Have The Money To Fight – Defending a federal case is expensive.  It can cost you $20,000+ to just explain your case to an attorney!  Going to trial, even for only a few days, can cost anywhere from $150,000 – $Millions.
  3. You Don’t Have A Good Plea Offer– If you were late to cooperating (in other words, everyone is cooperating against you), then the best offer coming your way is probably not a good one.  If prosecutors are offering you 10 years (20 years) and losing at trial will yield about the same outcome, then going to trial might be a good option.  After all, a “not-guilty” means you go home.
  4. You Want To Preserve Rights To Appeal – This is probably the biggest regret of people who plead guilty.  If they get a long prison term, even with the plea, they pretty much have no right to appeal (never say never but the options are limited).

Here are some reason to take a plea:

  1. You Did The Crime – If you did the crime, you do the time. You can accept the responsibility and move on with life.  In our justice system, these are the types of deals that work out best.
  2. You Get A Good Plea – Guilty or innocent, if you get a good offer, you have to consider it.  I have known people who were offered no time (just probation)…. they said “no” and lost at trial.  I also know people who have taken these deals who believe, as Judge Rakoff stated in his article, pleaded guilty when they knew that they had NOT done the crime they were charged for.  It happens.  Again, the system is not perfect.
  3. You Calculate The Cost / Benefit Analysis – If you look at your assets, you evaluate the costs of a plea versus what a “guilty” verdict would look like after trial … you can come to a decision.  It can be an economic decision and that is nothing to be ashamed of.  The key is to involve those who are affected by the decision (family and friends).  If going to trial puts your family at risk financially, a plea is an option, no matter how you feel about your guilt or innocence.

Don’t think that you are alone in how difficult these decisions can be.  Every year there are over 65,000 prosecution in the federal system … so nearly all of these are pleas.  If prison is a likely outcome in your case, then address that AFTER you consider taking a plea or going to trial.  Prison, the fear of prison, should not be a part of your calculus in making a decision to plea.  Some of the worst decisions a person makes in life are those made based on fear and a lack of information.

  • Walt Pavlo writes for Forbes and is a leading authority on white collar crime.


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