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Why Do Prosecutors and Defense Lawyers Negotiate Plea Bargains?

Posted by Tom Holland | Jun 22, 2021 | 0 Comments

Why Do Prosecutors and Defense Lawyers Negotiate Plea Bargains?
The different participants in the criminal justice system have different interests. The job of a criminal defense lawyer is to assert every argument and every strategy possible to achieve the best possible outcome for his client. The prosecutor is there to represent the needs of the public when a person has committed a crime.

Sometimes, the needs of the public mesh with the desires of a criminal defendant. Defense lawyers and/or prosecutors may seek to negotiate a plea bargain when this occurs. A plea bargain requires that the defendant plead guilty to lesser charges or to a lower-recommended court sentence.

Common reasons a prosecutor will consider a plea bargain

Some of the reasons a prosecutor will recommend a plea, or listen to a defense lawyer's plea bargain request, are:

  • Prison overcrowding. Local and state jails are often filled with people awaiting trial in addition to people serving criminal sentences. It is expensive to pay for the facilities, the security staff, the food, the medical care, and the other needs of the defendants awaiting trial and convicted defendants. Some jails and prisons have limited capacities. Prosecutors generally consider plea bargains so that they are not required to release prisoners with more serious offenses (on parole) or to imprison defendants who aren't a violent threat to the community. Some states and prisons may now (or in the future) be subject to court orders to limit overcrowding.
  • Crowded dockets. York, Lancaster, and Chester counties only have so many judges. Some jury trials can take days or even longer to try. If every defendant asks for a jury trial, many cases may need to be continued. Prosecutors need to keep track of how many cases they and the county court systems can actually handle. If the calendar of cases has too many cases, prosecutors are more likely to consider a plea bargain to avoid a jury trial or a bench trial. There are also a limited number of prosecutors, investigators, and other prosecutorial personnel. Prosecutors may consider a plea bargain if their own resources are limited.
  • The strengths and weaknesses of the case. A plea bargain means a sure conviction, provided the judge agrees (and most judges will). Prosecutors may agree to or consider a plea bargain if:
    • There are serious doubts about issues of law, such as whether self-defense, entrapment, or the admissibility of evidence applies;
    • The victim of the crime and/or other witnesses would not be good witnesses due to doubts about their credibility, the likelihood they will fall apart during cross-examination by a skilled defense lawyer, or for other reasons;
    • There are serious questions about what actually happened; and/or
    • The prosecution is unlikely to be able to prove a criminal charge beyond a reasonable doubt.
  • To protect certain sources or witnesses. Prosecutors may be concerned that an identity of an informant will be revealed if the case goes to trial. Generally, defendants do have the Sixth Amendment right to question the witnesses against them. Prosecutors may agree, for example, to a plea bargain in a drug case, to protect the identity of a Drug Enforcement Agency (DEA) official.
  • To obtain the defendant's cooperation. A prosecutor may offer or agree to a plea bargain on the condition that a defendant agrees to assist the prosecution in another prosecution. For example, a prosecutor may agree to a plea bargain on the condition a defendant agrees to wear a wire while speaking with another criminal suspect.

Prosecutors must consider the rights and concerns of the victims before offering or accepting a plea

Some victims are happy if there is a plea bargain because a plea bargain means the victim will not have to testify in court. Other victims may be unhappy because they think the defendant will be getting a lighter sentence, or will be convicted of a lesser crime, than the victim thinks is warranted. Both of these responses are valid, and prosecutors should consider the needs of the victim. However, the role of the prosecutor is to consider the needs of the public as a whole, and those needs may clash with the desires of the victim him or herself.

Generally, the prosecutor does have the discretion to decide whether to agree to a plea bargain – though the prosecutor may receive pushback from the press, and they may have an opponent in the next election as a result. The victim may also have the right to have his or her position heard by the trial judge at the time of the plea bargain presentation.

Prosecutorial discretion in drug cases

Prosecutors understand that their duty is to justice. Many prosecutors are willing to listen to plea bargain offers and to recommend plea bargains if they think a plea bargain is in the best interest of the community. For example, in drug cases, a prosecutor of a first-time drug offender (who is not accused of any violent acts) may consider that the defendant should be processed through a South Carolina drug court rather than a South Carolina criminal court.

In drug court cases, the emphasis is on rehabilitation of the defendant through extensive counseling and monitoring rather than imprisonment. In South Carolina drug courts, defendants may plead guilty to the charges but have their probation reduced or ended if they complete the program conditions. Drug courts focus on non-violent offenders who have severe drug addictions. Defendants may also be placed in a diversionary program where – if they complete the program – the charges against them may be dismissed.

At Holland Law LLC, we understand how traumatic and frightening criminal charges are. We fight for defendants through all stages of the criminal justice process. While our primary goal is to have the charges against you dismissed or to obtain an acquittal, we do negotiate plea bargains when we think they are in your best interests. To learn more, or to schedule a consultation with an experienced criminal defense attorney at one of our offices in Fort Mill or Rock Hill, please call 803-219-2630, or reach out through our contact page. We represent clients in York, Lancaster, and Chester Counties.

About the Author

Tom Holland

Experienced Divorce, DUI, and Criminal Defense Attorney While I've been primarily focused on the practice of divorce and family law for the past decade, my experience as a criminal prosecutor has continued to serve my clients well. I previously served as the General Counsel for the Lancaster Cou...


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