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Plea Agreement

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There are three types of plea options when charged with a crime: guilty, not guilty, and nolo contendere (also referred to as “no contest”).  See Federal Rule of Criminal Procedure 11(a)(1).  “Nolo contendere” is treated like a guilty plea in the sense that it still results in a conviction and sentence imposed on the criminal defendant as though they are guilty, but the defendant does not admit to the factual basis alleged by the Government or to actual guilt of the charged offense.  See Hudson v. United States, 272 U.S. 451, 255 (1926); N.C. v. Alford, 400 U.S. 25, 37 (1970).

Supreme Court Justice Burger wrote in the 1971 opinion Santobello v. New York, 404 U.S. 257, 260-61 (1971):

“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.”

From the prosecutor’s perspective, the negotiated plea conserves time and resources, lessens the risk of a possible unjust acquittal and eliminates undue stress on witnesses.  From the defendant’s point of view, the negotiated plea is a means of “cutting the losses,” of assuring the certainty of the sentence, avoiding the draconian consequences of the Sentencing Guidelines and avoiding the time, expense and trauma of a criminal trial.  Accepting a plea bargain is the defendant’s surest way to achieve the best possible result under the worst possible circumstances.

See LexisNexis Matthew Bender’s Prosecutorial Misconduct,  4th Ed., as written by Joseph F. Lawless, pp. 6-2 – 6-3(quoting Santobello, 404 U.S. at 260-61).

Respected attorney Joseph Lawless also writes, “Without the plea agreement, the criminal justice system would collapse under its own weight.”  Prosecutorial Misconduct, p. 6-2.  This is because the vast majority (90-95%) of criminal convictions obtained by the Federal Government are obtained by way of plea agreement.  See Plea and Charge Bargaining, Bureau of Justice Assistance, CSR Incorporated, Lindsey Devers, Ph.D., http://www.crsincorporated.com, January 24, 2011, last checked January 4, 2019).

Such plea agreements are based on contract law.  See Puckett v. United States, 556 U.S. 129 (2009)(“plea bargains are essentially contracts“); see also United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009); Santobello v. New York, 404 U.S. 257 (1971); Mabry v. Johnson, 467 U.S. 504 (1984).  This means that — to be valid — both parties (the Government and the criminal defendant) must both enter the contract/plea bargain (1) voluntarily and (2) knowingly (also sometimes referred to as “intelligently”), and each side must receive a benefit, or “consideration,” in contract language terms.  See Santobello v. New York, 404 U.S. 257 (1971); Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2547-2548 (1984)(discussing the necessity of consideration and the requirement that the prosecution provide the consideration it promises in plea agreements).

To be “voluntary,” there must be no threats or promises related to the plea agreement which induce a criminal defendant who would otherwise exercise their right to trial by jury to plead guilty instead, and the criminal defendant must be of sound mind (i.e. not inebriated or on some form of medication that effects the defendant’s capacity to understand what they’re agreeing to).  See Brady v. United States, 397 U.S. 742, 750 (1970)(guilty plea may not be induced through “actual or threatened physical harm or by mental coercion overbearing the will of the defendant”); Santobello v. New York, 404 U.S. 257 (1971); Mabry v. Johnson, 467 U.S 504 (1984).

The “knowing” requirement is a bit trickier.  It requires that the defendant understand the type of conduct which constitutes guilt under the statute charged, and that they can apply that reasoning to their own conduct they’re admitting in court.  In fact, it is a court’s responsibility to ensure that a criminal defendant understands the nature of the charges against them and that their own conduct qualifies as a violation of the charged law.  See McCarthy v. United States, 395 U.S. 459, 466 (1969)(“[A] plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”); see also United States v. Vonn, 535 U.S. 55, 68-69 (2009)(same); United States v. Dewalt, 92 F.3d 1209, 1211 (D.C. Cir. 1996)(guilty plea is not knowing unless a defendant receives “real notice of the true nature of the charges against him, the first and most universally recognized requirement of due process.”)(quoting Henderson v. Morgan, 426 U.S. 637, 645 (1976) and Smith v. O’Grady, 312 U.S. 329, 334 (1941)); United States v. Dewalt, 92 F.3d 1209, 1211 (D.C. Cir. 1996)(“‘Real notice of the true nature of the charge’ means notice sufficient to give the defendant an understanding of the law in relation to the facts”)(internal quotations and citations omitted).

In addition to the above, the “knowing” element also requires that the Government lay out a sufficient factual basis for the plea of guilty in the plea agreement which states specifically the defendant’s conduct that violated the law, and the defendant must admit to those actions for a guilty plea to be valid.  See United States v. Washington, 969 F.2d 1073, 1077 (D.C. Cir. 1992)(“To establish a factual basis for a guilty plea, that defendant need only admit to the conduct which ‘constitutes the offense charged in the indictment … or an offense included therein.'”)(quoting McCarthy v. United States, 395 U.S. 459, 467 (1969)).

As for “consideration,” the Government saves significant resources by obtaining a conviction through guilty plea rather than through trial.  But what does a defendant get out of such an agreement?  Often, the benefit given to the defendant is an agreement by the prosecutor not to prosecute other offenses committed, either ones already charged which get dismissed or ones which have not yet been brought against the defendant.  Sometimes, the Government structures such agreements so that the benefit the defendant receives is immediately removed upon pleading guilty.  These “self-breaking” agreements have been held to be illegal and invalid by the Supreme Court, and such an error requires remand and that the plea process begin again.  See Puckett v. United States, 556 U.S. 129, 173 L.Ed.2d 274, 282 (2009).

Respected civil rights attorney Harvey Silvergate said in his book Three Felonies a Day, pp. XVIII-XIX:

Astute observers of the federal criminal justice system have long since given up believing that the guilty plea reveals true culpability.  It’s all too common for such pleas to be the product of risk avoidance at the expense of truth.  In this sense, the scripted plea colloquy has become a big part of corruption afflicting the entire system.

Additionally, when the esteemed Judge Alex Kozinski was honored to write the forward to the 2015 edition of the highly relied on Georgetown Law Journal Annual Review of Criminal Procedure, he used the rare opportunity to voice his concerns over the plea process used today:

[It is a] myth [that] [g]uilty pleas are conclusive proof of guilt.  Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial.  Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction.  But this fails to take into account … the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.  It also ignores that many defendants cannot, as a practical matter, tell their side of the story at trial because they fear being impeached with prior convictions or other misconduct.  And, of course, if the trial process is perceived as highly uncertain, or even stacked  in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense.  If the prosecution offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the defendant may cave to the pressure, throwing away a good chance of acquittal.

44th Georgetown Law Journal Annual Review of Criminal Procedure (2015), pp. xi-xiii.

A special and rarer type of guilty plea permitted by Federal Rule of Criminal Procedure Rule 11 is referred to as a “C Plea” because it is under subsection C in Rule 11.  Unlike normal plea agreements where a defendant is uncertain about the what the ultimate sentence may be, a C Plea binds both the defendant and prosecutor to a set recommended sentence, and — generally speaking — neither party may request a higher or lower sentence at sentencing without breaching the agreement.  The sentencing judge, however, is not so bound, but such sentencing judges tend to go along with such an agreement when the prosecutor is on board.

The decision to enter into a plea agreement or go to trial is a big and important decision.  We at Dishonorable Courts cannot advise anyone regarding such decisions, and we recommend, instead, that criminal defendants seek such advice from trained lawyers before making such critical and life-changing decisions.


Lawless, Joseph F.; Prosecutorial Misconduct: Law, Procedure, Forms, 4th Ed.; LexisNexis Matthew Bender; Newark, N.J.; 2008.

Devers, Lindsey, Ph.D.; Plea and Charge Bargaining, Bureau of Justice Assistance; CSR Incorporated; https://www.csrincorporated.com, January 24, 2011; last checked January 4, 2019.

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