Basics of a Federal Plea Agreement
The federal plea agreement is the product of negotiations between the government and the defendant to resolve a case without going to trial. The agreement generally includes the defendant’s acknowledgment of guilt and a statement of what charges will be dismissed or what agreement has been reached in exchange for the defendant’s plea. The agreement is also usually made pursuant to Federal Criminal Rule of Procedure 11, which outlines the requirements for a valid plea. The judge will typically ask questions of the defendant to confirm his understanding of the consequences of pleading guilty as opposed to going to trial, and advises him that he is waiving certain rights by pleading guilty.
Plea agreements are quite foreign to the general public, as they have no idea that around 90% of federal criminal cases never go to trial, but rather are resolved via plea agreement. Federal criminal defense lawyers face the difficult task of deciding when it is in their client’s best interest to proceed to trial, and when to negotiate a plea agreement with the prosecution. Defendants who plead guilty and have little or nothing to argue on appeal, because the facts of their case clearly indicate guilt, will often do so because it provides them no other option to avoid a lengthy prison sentence. Their attorney will work to get the minimum sentence possible in exchange for guilty pleas to various counts, and in some circumstances, the dismissal of one or more counts.
The importance of the plea agreement cannot be underestimated for the prosecution, either. A guilty plea means that the government does not have to spend the time and money it would need to try a case . Federal criminal trial costs are enormous, and include everything from the expense of jury selection and testimony to the time spent reviewing and organizing documents to be used at trial. Moreover, the government has resources available that few criminal defendants can compete with. The federal government has a nearly limitless budget, and attorneys whose only focus is to convict those charged with federal crimes. A defendant’s chances in trial are reduced substantially when fighting against seasoned and knowledgeable prosecutors who are being funded by taxpayers.
One of the many reasons to enter into a plea agreement is the chance for a lighter sentence. By entering into a plea agreement, the defendant is usually afforded a lower base offense level, and therefore will be eligible for a lesser sentence. In addition, the prosecution will frequently join the defendant in making a motion for a lesser sentence. Under 18 U.S.C. § 3553(e), the defendant may even be eligible for a sentence below the statutory minimum in exchange for his cooperation with the prosecution. When there is insufficient evidence for a count to be included in a federal plea agreement, a prosecutor is allowed under U.S.S.G. § 6B1.2 to reduce the recommended sentence even further.
Another important reason to enter into a plea agreement is the ability to conserve family resources. A guilty plea saves both the defendant and his family the expense of trial, which is especially important in federal cases where the defendant’s family may not see him for several years if he is convicted and sentenced to prison.
The Use of Sentencing Guidelines
Federal sentencing guidelines have become increasingly relevant to plea agreements. The federal sentencing guidelines are a set of regulations that were developed by Congress to provide greater fairness and more consistency in federal criminal cases. They are found at 18 USC § 3553(a). A judge is required to follow the federal sentencing guidelines unless in rare circumstances where not following them would create an injustice. Both prosecutors and defendants use the sentencing guidelines in federal criminal prosecutions. The sentencing guidelines dictate what the range of punishments could be for different offenses – including incarceration, period of supervised release, probation, fines, and restitution. Prosecutors and defendants often use computer software programs that utilize the same formulas as the sentencing guidelines to help anticipate the expected sentence in a particular case with the plea agreement. The federal criminal defense attorney also uses them in arguments on behalf of the defendant to reduce the sentence. The biggest impact of the federal sentencing guidelines on plea bargains may be in the area of probation. For example, a 45 year-old defendant with no criminal history will usually face a one-year period of home detention (in lieu of jail time) for mail fraud, but the defendant’s age and other factors must be taken into account. (18 USC 3556; USSG §5B1.1.). The federal sentencing guidelines were instituted in 1980 to create more uniformity and fairness to defendants by eliminating gross disparities in sentences for similar offenses or offenders. At times, Congress has been unhappy with the results of the federal sentencing guidelines which led to a dramatic change in the guidelines in 2004 with United States v. Booker, 543 U.S. 220 (2005) (holding that the mandatory provisions of the sentencing guidelines violate the Sixth Amendment [right to jury trial] when they are applied via judge’s findings that increase a defendant’s sentence: "We hold that the Sixth Amendment as construed in Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531], requires a jury and proof beyond a reasonable doubt of any fact other than a prior conviction which is necessary to support a sentence exceeding the maximum authorized by the facts established by a verdict or plea of guilty."); and United States v. Fanfan, 543 U.S. 220 (2005) (same). Before the Booker-Fanfan decisions, federal judges were required to impose a term within the sentencing range that the sentencing guidelines calculated (which was sometimes called a "guideline sentence"). Even if the judge thought that a higher or lower sentence was warranted, she had to apply the sentencing guidelines and accepted the involuntary role of mere cog in the machine of justice. Suppose, for instance, that a federal judge thought that a particular defendant was a "bad" person and that her crime merited a higher than usual sentence. Before the Booker-Fanfan decisions, the judge was required to impose a sentencing range that was calculated according to the sentencing guidelines. On the other hand, a judge may think that a particular defendant’s crime was not serious enough to merit even a guideline sentence. Under the pre-Booker-Fanfan rules, the federal judge would have been required to impose a guideline sentence, even if she disagreed with the guideline. Applying her own judgment of what the crime merited was not an option for the judge. Because of the Booker-Fanfan decisions, the federal judge now does not automatically have to impose a guideline sentence. As a result of the use of sentencing guidelines, many defendants have received lighter sentences with a federal plea bargain than they would have if they had gone to trial and lost. The federal sentencing guidelines can be a great help to defense attorneys in making their recommendations for their clients.
Negotiating a Plea Agreement
Once the plea agreement and the federal sentencing guidelines are prepared, they become subject to negotiation, just as any employment, car purchase, or contract agreement would be. The parties – the prosecutor and the defendant (through his or her attorney) – may negotiate the terms of the agreement. The defendant will be present for all negotiations, although he or she will not speak. With the advice of counsel, as needed, the defendant will always know and consent to what happened, and he or she will acknowledge everything stated in the signed Plea Agreement at sentencing under oath. The Assistant United States Attorney will begin by informing the defendant of his or her position in the federal sentencing guidelines, using one of them made for his or her case. All plea agreements are fully avowable documents. The prosecutor will read his or her version of the facts of the case. The defendant will get a chance to ask questions through his counsel as needed, usually after confirming that he or she agrees to the statement. The defendant’s lawyer will proceed with his or her version of the facts of the case, making his or her arguments for the agreement. The defendant may be given an opportunity to speak for himself or herself. At the end of this process, the lawyer may ask the prosecutor to reduce the charge from a felony to a misdemeanor. If both sides agree to the plea agreement, it is signed by all parties. The judge will then hold a hearing, make his or her determination, and pronounce a sentence. Most parties won’t get to plea agreement negotiations on their first day of criminal defense. The defendant might have to wait days or weeks to get to the plea agreement stage. He or she should understand that the discussion about a plea agreement will probably not take more than five to ten minutes. However, when it comes to a plea agreement in the following stages, the matter may take longer. For instance, a defendant with two prior cases may have 5 to 10 prior cases – depending, of course, on the nature of the offenses. In such cases, the defendant probably has not pleaded guilty before, so he or she may need time to review everything being offered and negotiate his or her rights. At this point of the case, the defendant’s lawyer will negotiate with the prosecutor, but then the two lawyers will negotiate with the Judge’s law clerk before approaching the judge with the proposal. The defendant’s lawyer will need the jury instructions and the law, even the jury verdict form if possible, to discuss with the Judge’s law clerk. This procedure allows the defendant to offer a plea agreement that is favorable to the government. Depending on the nature of the case, it can take anywhere from 6 weeks to 12 months to negotiate a plea agreement. Most federal prosecutors will go out of their way to work with a defendant on the correct charge and facts for the case. When a plea is done right, the facts favored by the defendant should be reflected in the final plea agreement. If the plea agreement is ultimately negotiated and accepted by the defendant, it will usually be filled with sentencing considerations favorable to the defendant and generous to the government. If the defendant is unsatisfied with the original plea agreement, lets his or her lawyer take the lead, and is agreeable to the prosecutor’s recommendation for a new plea agreement, this too should be fine. However, the defendant is best served if he or she is agreeable to everything that takes place in the plea agreement the first time and not just during a second negotiation.
Sentencing Consequences
Federal plea agreements can greatly affect the outcome of sentencing. The expected sentence length is likely to be lower with a plea agreement than without one. Further, conditions might become part of the sentence as part of the plea bargain. There are additional ways in which a guilty plea may alter the final result of sentencing:
• Reduction or elimination of certain charges through bargaining.
• Non-binding recommendations. The choice whether to make these binding will depend on the judge and therefore negotiating skills.
• Various programs in addition to prison time. Examples include community service and restitution.
• Recommendations for sentences at the low end of the spectrum and/or probation instead of incarceration.
• Commencement of incarceration at a later date to help with personal issues like employment status.
• Reporting to the court by a certain date and time.
• Probation after release.
Defendant’s Rights
It is important for criminal defendants to understand all of the rights that they are waiving when they accept a plea agreement. Many of these rights are not discussed in detail to defendants. Understanding these rights is important because there could be long term negative consequences if that defendant chooses to accept the plea deal because they may lose certain legal protections that they otherwise would have received had they chosen to go to trial , such as a right to appeal. Defendants should be fully aware of and have considered the issues fully before choosing to accept a plea agreement because penalties can be severe, and may include but are not limited to, loss of future employment opportunities, loss of right to vote, registration requirements as a sex-offender, or incarceration.
Recent Guidelines Developments
Recent trends in the types of Federal Plea Agreements has prompted studies that show an increasing number of cases are instead proceeding through a Guilty Plea by Information. A Guilty Plea By Information typically results in a more severe sentence because typically the defendant will be pleading_guilty to a more serious charge in exchange for the Government dismissing other possible charges. The reason for this practice seems to be two-fold: as mentioned above, the Government may become aggressive (at times demanding) that you be held for a serious violation, or other suspects may see it as less plausible that they will win at trial as compared to the Federal Government’s plea bargaining process.
The one thing all Plea Agreement negotiations have in common is that they are based on the language in the United States Sentencing Guidelines Manual (Guidelines). This manual became a law in 1987 and was amended as recently as 2004 to provide Federal Judges with a better basis for determining the appropriate sentence for an offender. Before this system was in place, the Federal Government did not require Judges to follow a sentencing guideline.
The Guidelines help to ensure that the sentences imposed on like-offenders are consistent, but the Guidelines are not binding on either the Judge or the defendant. Many feel that the Guidelines may be too harsh. The US Sentencing Commission, which is comprised of seven members appointed by the President, promulgates the Guidelines but does not have authoritative enforcement power. As of now, there is no solid consensus on the accuracy of the Guidelines, and any changes to the Guidelines will come from Federal Court decisions as well as the US Sentencing Commission.
The common theme in the current changes to Plea Agreements and sentencing guidelines is something that looks like "There will be a trial if you do/ do not enter into the agreement." In this way the whole thing becomes something like a hostage situation. The person being investigated feels (consciously or subconsciously) compelled to enter into the plea deal, even if they are factually innocent, and even if the plea deal is extremely undesirable to them. In this scenario the Defendant will be holding their breath, hoping and praying that the case just goes away when the client’s Attorney appears on the day of the scheduled trial, but finding themselves asking if they brought all of the evidence to rebut the Governments case.
Tips for Defendants and Attorneys
Given that most criminal cases do not go to jury trial, something like 90 to 95% of all criminal cases in federal court, defendants must give careful consideration to the timing of a plea agreement or taking the case to a jury trial. This is true regardless of whether the defendant has been charged with solicitation, racketeering, or tax evasion. If a defendant decides that it is best to accept a plea agreement, we have a list of questions that we suggest asking the prosecutor in order to get all the information you need to make an informed decision .
- How is your record going to be affected? Will this charge remain on the defendant’s record indefinitely or after a set period of time? How will a conviction for this charge affect a defendant’s career in the future?
- What is the maximum and minimum sentence for the crime?
- Is there a risk of federal sentencing guidelines?
- What does the evidence against the defendant look like? Is there a strong case against the defendant?
- What are the immigration laws pertaining to my case?
- How will a guilty plea affect my immigration status?
- Can I appeal my conviction if I plead guilty?
- Will the plea deal stipulate that you received a fair trial, but just plead guilty to avoid a lengthy and expensive trial?
- What are the chances of getting probation for this charge?
- What are the chances of a reduced sentence?
- Will working with authorities, or testifying hurt me or help me?
- How can I best avoid costly trial expenses?
- If I do plead guilty, how can I best prepare my case for the judge?
- What does the judge look favorably upon and what can the defendant do to obtain the best possible outcome?
- Is it possible to get the charges dropped? Or can the defendant plead for lesser charges?
- How long can I expect to serve prison time? How can I best reduce my prison sentence?
- What is the defendant’s release date likely to be?