12. Understanding Plea Agreements

When authorities charged me with federal crimes in 1987, I did not understand the decisions ahead. I knew I had broken the law, yet I went to trial without adequately considering how a different approach might influence my future. I received a 45-year sentence and served 26 years in federal prison.

I cannot know what would have happened if I had made different decisions. I do know that I should have invested more time in learning before making them.

For someone facing criminal charges, that learning should include understanding plea agreements. Before deciding whether to accept one, a person should understand the proposed terms, the alternatives, and the consequences that may follow.

What Is a Plea Agreement?

A plea agreement is an agreement between the government and the defendant. Defense counsel ordinarily negotiates its terms with the prosecutor. In exchange for a guilty plea and any other commitments, the government may agree to dismiss certain charges, refrain from bringing additional charges, or take a particular position at sentencing.

The agreement should identify what each side promises. Those promises vary from case to case. An agreement another person received may offer little guidance about what prosecutors will offer you.

A guilty plea and a plea agreement also describe different things. A person can plead guilty without negotiating an agreement with the government. Lawyers may call that an “open plea” or a “straight plea.” In that situation, the person proceeds without negotiated promises from the prosecutor.

Why Do People Negotiate?

A trial requires preparation and brings uncertainty for both sides. Prosecutors may negotiate to resolve a case promptly, conserve resources, or spare witnesses from testifying. A defendant may seek fewer charges, reduced sentencing exposure, or greater certainty.

Whether an agreement serves a person’s interests depends on the evidence, possible defenses, potential penalties, and the actual terms offered. Counsel can help evaluate those issues. The person facing charges should participate by asking questions and working to understand the answers.

For example:

• What would prosecutors have to prove at trial?
• What evidence supports the allegations?
• What defenses does counsel see?
• What benefit does the proposed agreement provide?

Those questions help move the conversation from a general fear of punishment toward an assessment of available choices.

Read the Entire Agreement

A person may naturally focus on how much prison time they could receive. Yet a plea agreement can address much more. I encourage you to focus on the result that you want, and then work with counsel to architect the best possible path toward that result.

Remember that the prosecutor’s agreement to recommend a sentence does not necessarily require the judge to impose it. Some agreements bind the court once accepted; others leave sentencing decisions open.

An agreement may also limit appeals or later challenges. Ask counsel to explain the rights you would surrender, any exceptions you would retain, and the obligations you would undertake. Discuss financial consequences and any concerns about immigration, employment, or professional licensing.

Before deciding, try explaining the agreement in your own words. Identify anything you cannot explain and return to it with counsel. You should understand what you are accepting.

Connect the Decision to Your Mitigation Strategy

A plea agreement can become one part of a comprehensive mitigation strategy. Preparation also includes considering what you can do now to address your circumstances and build a better future.

Depending on your situation, that mitigation strategy may include treatment for substance abuse or alcoholism, education, employment, efforts to address harm, or building a release plan that shows your commitment to living as a law-abiding citizen. Keep records of your progress and discuss them with counsel. Ask which materials may help explain your circumstances and preparation, and which information should remain private.

I wish I had understood earlier how much I needed to learn. You can begin developing that understanding before making decisions that may shape the years ahead.

Questions to Discuss With Counsel

• What offenses and facts would I admit?
• What does the government promise in return?
• What decisions would remain with the judge?
• Which rights would I surrender?
• What obligations and consequences could follow?
• What alternatives should I consider?
• What can I begin doing now to prepare?

Write down the answers in language you understand. Use any remaining questions to guide your next conversation with counsel.