Most of the time, a criminal case follows a certain pattern; a pattern that most people tend to intuitively recognize from television or from the occasional criminal justice class—a police officer witnesses or investigates a crime, arrests the suspect, and the government prosecutor’s office files a charge. From there, the Defendant has two choices: 1. To have a trial in which the government has to prove its case beyond all reasonable doubt, or 2. To plead guilty and accept a plea bargain.
The plea bargaining process also follows certain patterns. For example, a plea bargain is initially premised on what the defendant is charged with. And most of the time, there are sentencing guidelines that the Judge may need to follow in order to accept a lawful plea bargain.
But in rare instances, when a client’s sentence has been agreed upon by both sides, then the criminal charge itself becomes negotiable.
Over years and years as a criminal defense attorney, I have occasionally been in the unique position of working out the terms of client’s sentence with the prosecuting attorney, and then reverse-engineering what the charges should therefore be, to fit within the parameters of sentencing guidelines. The client is gob-smacked when I have said “what charge would you like? Here’s three. Take your pick.”
For example, a few years ago I represented a man who was charged under Florida Statutes 790.23 - Felon in Possession of Ammunition. This client had been convicted of a felony in 1990, when he was in his twenties. When I represented him, he was in his fifties. He was driving his brother’s truck and was pulled over for speeding. The officer saw a single bullet in the truck’s console, within reach of my client. So, the officer arrested him for being a Felon in Possession of Ammunition. This posed several problems, the first being the seriousness of the charge in relation to the specific facts. Section 790.23 casts a wide net, so my client was caught up in a charge that was intended to criminalize convicted felons owning and using loaded firearms, and not intended to criminalize the chance presence of a lone bullet in the vehicle’s console. The second problem was the sentencing guidelines. Section 790.23 is a second degree, level-five felony, meaning that following Florida’s sentencing code, this client was all of a sudden facing a maximum of 15 years in prison if he was convicted, and automatically ‘scoring’ a presumptive minimum period of incarceration according to the Florida guidelines. Luckily, the prosecutor I worked against understood these factual issues, and we were able to negotiate a compromise wherein the client would not have to serve hard time for the bullet in the console. With the sentence agreed to, the only problem was the charge—so the prosecutor agreed to reduce the charge, which reduced the client’s presumptive scoring, and we were able to reach a more just outcome based on the actual events that occurred.
And before the reader takes issue with this seemingly unjust complexity of the justice system, be reminded that a plea bargain is a compromise where both sides are giving something to the other. The reasons any prosecutor I have worked against has agreed to such a compromise is never leniency, but always based in fact and what they can, and cannot prove in each particular case. And that is the fundamental basis of our criminal justice system.
