Estimates of the number of criminal cases settled by agreement – a plea bargain – are somewhere between 90 and 95 percent of all cases across the country.
This is also true in the state of Colorado.
Plea bargaining, especially in felony cases, can be very complex. The short and long-term impacts on the lives of those caught up in the criminal justice system, coupled with the many variations of plea agreements that can be negotiated between a district attorney and an experienced criminal defense lawyer in the whirlwind of seeming chaos and confusion, cannot be understated.
To that end, I have written several articles over the years attempting to add some transparency and clarity to the factors you should understand that surround this process. This is another of those articles.
Why Are There Plea Bargains?
First, Colorado’s district attorneys (DAs) seek plea bargains to clear overwhelmingly large caseloads and to focus their time and attention on the most serious of criminal cases.
Second, fair and just plea bargains may bring closure to the victims of the crime and their families. When the accused shows remorse, pleads guilty and accepts responsibility for his or her criminal acts, the concept of mercy, in the form of a reduced charge or sentence, makes sense.
One thing needs to be made very clear, while plea agreements allow for the resolution of a criminal case, a plea of guilty should only occur where the evidence of guilt is strong.
While plea bargains have the benefits described below they should never be accepted at the expense of justice.
The criminal justice punishes less harshly someone who accepts their mistakes and who wishes to account for their actions. This starkly contrasts to an accused who, notwithstanding overwhelming evidence of guilt, still refuses to admit responsibility for their crimes and forces the case to a jury trial.
With a few highly unusual exceptions, the two scenarios have very different results in the criminal justice system. The decision to take a case to trial must be made by the defendant with the advice of an experienced criminal defense lawyer.
Criminal defense lawyers negotiate plea bargains at the request of their clients because of the real risks of taking a case to trial and the reality that a plea bargain, the right plea bargain, can be a better result than the worst outcome they could face at trial. Also, like the victims of crime, defendants and their families may want to bring some closure to a terrible experience.
Will the District Attorney Offer You a Plea Bargain?
Not all cases will result in a plea bargain. Some of the most serious cases will not be resolved because of the DA’s policies against offering plea bargains in certain cases. Some crimes, some individuals with very serious criminal histories, or some cases involve such “aggravated circumstances” that a plea bargain is never offered or never reached.
Technically, a plea bargain can occur at any time up to and including the moments before a jury reaches a verdict. More commonly, most plea bargains happen at a much earlier stage in the process. The more time that passes as a case proceeds down the road to trial, the less likely there will be a plea deal.
While there are exceptions to this “rule” as the trial dates approach the less likely the district attorney will “deal.” The exceptions usually involve lost evidence, reluctant or failing witnesses, or when the prosecutor uncovers weaknesses in the case that were previously unknown, unknowable, or through negligence or a pure lack of time and resources, undiscovered.
The Defendant Always Makes the Final Decision to Plea Bargain or Not – With the Advice of Counsel
A defendant has the right to completely ignore their lawyer’s advice and reject all plea bargaining. As a matter of law, a defendant has the absolute right to make the final decision to accept a plea bargain offer or to go to trial for it is the accused who, in the final analysis, faces the risks of receiving a harsher sentence after trial.
The pressures placed on the shoulders of a person in this situation are immeasurable. Careful consideration of the merits of the possible defenses that could be asserted at trial case must be weighed along with the possible outcomes at trial. Clarity of the issues in this difficult environment is both challenging and critically important.
A guilty plea means the decision accept and not challenge issues of guilt and innocence. A guilty plea has been called the highest form of admission, of self-incrimination in the criminal system. There is no room at the margins. A guilty plea tells the judge that you did it and you are accepting full responsibility for your criminal conduct.
By negotiating and accepting a plea bargain, the defendant waives (gives up) important constitutional rights to include:
the right to plead not guilty,
the right to a jury trial,
the right to confront the witnesses in court,
the right to appeal,
the right to challenge the evidence in court,
the right to testify or not to testify,
the right to challenge constitutional violations such as a violation of their Fourth and Fifth Amendment rights,
the right to require the prosecution to prove your guilt beyond a reasonable doubt
the right to present any available defenses at trial.
The Nature of Plea Bargaining
In Colorado, a plea bargain in a criminal case is an agreement between:
1. THE DEFENDANT – who agrees to enter “a plea” of guilty to one or more of the charges against him or her or to a lesser charge. Depending on the terms of the agreement, the defendant receives the benefit of the bargain such as a conviction for a less severe charge, probation, no jail or prison or perhaps a shorter jail or prison sentence.
2. THE DISTRICT ATTORNEY – who negotiates with the criminal defense attorney in a process that, in the most serious cases, can take months to achieve. Importantly, there is no right to plea bargain and the DA has no obligation to negotiate in any given case and may not.
3. THE JUDGE – who must accept the terms of the plea agreement. A plea agreement is subject to a judge’s approval and is “non-binding.” A judge can “reject the plea” and refuse to accept the plea agreement for any legitimate reason.
4. THE VICTIM – While the victim of a crime does not have the right to control the terms of a plea bargain, the Colorado Victim’s Rights Act gives voice to the specific concerns of the victim and victims have the absolute right to be consulted before a plea agreement may proceed to a conclusion.
ALL Terms of the Plea Bargain Must Be In Writing or They Are Not Enforcible
At the time of entering the plea on the record in court, the judge will advise the defendant that every term of the plea agreement must be in writing and in the plea paperwork.
ALL promises by the government, the entire plea agreement must explicitly and clearly be stated at this time and plea agreements should appear in the court record. “Off-the-record” promises that a defendant’s claims were made by the prosecutor are not enforceable…. full stop.
Why Then Do SO Many People Plea Bargain – Certainty, Lesser Punishment, and the “Trial Tax”
A “trial tax” means a defendant receives a more severe sentence if they choose to reject a plea agreement and take a case to trial. Prosecutors have the authority to attempt to pressure defendants to waive their right to a trial and plead guilty.
If the government has strong evidence, proof of the guilt of the defendant beyond a reasonable doubt such as:
- a video of the defendant committing the crime,
- multiple credible eyewitnesses to the crime,
- a legally obtained and “Mirandized confession” by the defendant,
- the defendant’s fingerprints or at the scene or on the weapon,
- DNA evidence,
….and similar types of overwhelmingly strong evidence, then taking the case to trial may have the kind of impact on the judge that is completely understandable and predictable.
Defendant’s who take such cases to trial must answer the unasked question… “why would you, why did you, reject the plea bargain offered in this case and take such a massively strong case to trial and waste the time and undergo the expense of that trial?”
While it is clearly unfair and unconstitutional in my opinion, it is a fact of life that every person with any level of experience in the criminal justice system understands and it is a factor in plea bargaining.
Defendants often view plea bargaining offers as a form of extortion of a guilty plea and criminal cases rarely have the kind of overwhelming evidence noted above. The accused usually has to make the best decision based on risk tolerance and a number of factors over which they have no control on the advice of their lawyer, who may or may not, have the experience and intelligence to predict the result of a jury trial.
Consider a plea bargain offer of one year in a Colorado county jail as opposed to a possible ten years in a Colorado prison with a fifty percent of winning at trial. These are the kind of decisions that will keep a person up at night.
The decision to “take a plea” may turn on the defendant’s clear understandings of the options presented.
Types of Plea Bargains
What Are the Major “Types” of Plea Agreements in Colorado Criminal Cases?
While there are many variations on the negotiated plea agreements, plea bargains come down to a foundational group of three with combinations of these with other terms.
I. Charge or Count Plea Bargaining
In charge or count bargaining, the defendant pleads guilty to a lesser charge and the greater charge is dismissed. Sometimes if there are multiple charges, count bargaining can be the dismissal of some counts (mandatory jail or prison sentencing counts for example) and the defendant pleads guilty to added or even existing less serious counts.
II. Sentencing Plea Bargaining
With sentence bargaining, the defendant pleads guilty with an agreement to a specific sentence. Judges in some counties in the Denver area (Jefferson and Adams counties for example) refuse to accept sentence bargaining. Even where sentencing bargaining is an acceptable practice, a judge may decide to reject the sentence and the parties must start over.
When a judge rejects sentence bargaining, the sentence becomes what is called “an open sentence” – which means the actual sentence imposed is up to the judge
III. Fact Plea Bargaining
Fact bargaining is rare. Examples include agreeing that a sex crime such as sexual assault was a non-sex crime or dropping the domestic violence “tag” in a case where the original charges involved alleged acts of domestic violence. Again, judges can, and often do, reject fact bargaining as involving too much of a distortion of the evidence in the case.
The Gold Standard of Plea Bargains – the Colorado Deferred Judgement Plea Bargain
Because of the importance of the deferred judgment offer, I have written many articles to help persons presented with the option fully understand the risks and benefits of a deferred judgment and sentence
Colorado Revised Statute 18-1.3-102 authorizes the deferred judgment plea bargain.
“In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.”
Essentially, the defendant who accepts the deferred judgment offer enters a guilty plea to the agreed-upon charge. A contract is formed. With the consent of the defendant, his attorney, the prosecutor, and the judge, the defendant is never sentenced – the sentence and the judgment is deferred – that means continued for up to four years for felonies, and up to two years for misdemeanor cases.
The contract is an agreement to probation with certain terms and conditions. If a defendant “breaches” violates the terms of the deferred judgment probation, the prosecutor has the right to “move” to revoke the deferred judgment contract and the sentence and the judgment of conviction is entered.
On the other hand, upon the successful completion of the deferred judgment contract, the guilty plea is automatically withdrawn and the charges are dismissed with prejudice meaning the case can not be refiled.
Examples of typical conditions of the deferred judgment contract include, but are not limited to, some or all of the following:
Monitored urinalysis or blood tests for alcohol and drugs,
Domestic violence and/or anger management classes,
Drug or alcohol education and therapy,
General kinds of mental health treatment and therapy,
Restraining orders protecting victims and witnesses,
Limitations on leaving the state,
Payment of child support,
Full-time work, education of a combination of both,
Useful public service hours,
Payment of restitution and court fines and costs,
No new criminal law violations.
Sometimes a “deferred” or “DJ and S” is referred to as first-time offenders offer but a deferred can be negotiated in many other contexts such as cooperation agreements to testify against others – such as co-defendants.
Other reasons to offer deferred include cases in which there are proof problems, such as a reluctant or recanting witness or other significant mitigating circumstances.
Combinations of Plea Bargains – Felony to a Misdemeanor and the Split Plea
Colorado District Attorneys plea bargain using many different combinations of offers. Understanding the variations of possible plea bargains is crucial to effective negotiations and reaching the best result in a Colorado criminal case.
The Felony Reduced to a Misdemeanor Plea Bargain Offer the Straight Plea
A form of charge bargaining occurs when the DA offers the reduction of a felony to a misdemeanor. At first glance, the relief from avoiding a felony conviction will seem like a great offer.
This kind of “straight plea” offer most often means a permanent conviction on your criminal history. If the misdemeanor cannot later be sealed, (see below) ALL OF THE ORIGINAL CHARGES, even if dismissed at the time of the plea to the misdemeanor, including the misdemeanor, remain permanently on your record.
When a background check is done – all of the charges will appear. Present or future employers will not make a distinction that the more serious charges were dismissed and therefore they never happened. They will move on to the next candidate.
A young person, over a lifetime, can easily lose hundreds of thousands of dollars in missed opportunities.
On the other hand, a retired person, or a person who is self-employed may see the straight plea to a misdemeanor as a better offer since background checks mean little or nothing to them.
The Colorado “Split Plea” Plea Bargain – Why Is It Offered?
A split plea is a hybrid of the two types of plea bargains noted and discussed above. A split plea is a deferred judgment to the felony charge AND a plea to a misdemeanor charge.
In this offer, the DA is unwilling to make a “straight deferred” offer to the felony and also unwilling to make a straight plea reduction to a misdemeanor. Of the three types of offers, it is the worst option.
The message behind this plea bargain offer is, as is the case of the straight plea to the misdemeanor offer, the DA does not want you to have the option of sealing your record.
Again, the relief felt of avoiding a felony conviction is short-lived when it becomes clear that the case is not sealable.
The Critical Importance of Sealing Records and Colorado Plea Bargaining
One of the most important considerations in deciding whether to accept a plea bargain for a deferred judgment and sentence, or to a lesser, straight plea to a misdemeanor, is the loss of the option of sealing your record.
A deferred judgment is not considered a conviction. In most instances, it is sealable. When asked if you have a felony conviction – the answer is a legally sanctioned… no.
While fulfilling the terms of a deferred judgment means the case is dismissed and the charges cannot be refiled, the decision to seal the case, one more layer of red tape, is worth it.
Colorado law permits most eligible cases to be sealed immediately. If the case is not sealed it will always appear in your background with the Colorado Bureau of Investigation.
If the case is sealed, Colorado law also permits you to engage in “a legally sanctioned lie.”
When asked if you were ever arrested, ever charged, ever pleaded guilty, ever did probation, etc. if your case has been sealed, the law allows you to answer NO to all of those questions. Unless the background check is being performed by law enforcement or you are applying for employment in certain sensitive fields, the case disappears from your record.
Sealing Your Record Under Colorado’s “New” Sealing Laws
In 2019, the Colorado State Legislature enacted a comprehensive new sealing law. The new Act repealed and reenacted the statutes related to sealing criminal justice records and created a simplified process.
For a complete description of Colorado’s sealing laws in another of my articles – please follow this link:
Closing Thoughts – the Guilty Plea Accepted “To Get It Over With”
Plea bargaining can be complex. Obviously, there are many benefits to plea bargaining which is why 90 to 95 percent of all cases are plea-bargained across the country. However, accepting a plea bargain as one option means understanding and balancing all of the complex factors in your specific case
Please remember that you are never required to accept a plea bargain. You always have the constitutional right to take your case to a jury trial.
If you did not commit the crimes charged, you should not enter a guilty plea. “Getting it over with” is an unsound reason to “take a plea” when one is innocent.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.