Some cases need to go to a jury trial. Sometimes nothing short of a dismissal or an acquittal will do. Other times, a criminal defendant is simply looking to avoid a felony conviction, jail time, or sex offender registration and those goals can be met through a plea agreement.
Client goals are extremely important in the criminal defense process. The defense attorney needs to know up-front what those goals are and figure out how to meet his/her client’s objectives. Sometimes those objectives can be met through plea negotiations, but when they cannot it is time to go trial.
In some counties like Douglas, Sarpy, Hamilton and Hall, judges frequently follow sentencing recommendations if it is part of a plea deal between the defendant and the prosecutor. In other counties like Lancaster County prosecutors won’t even consider making a sentencing recommendation.
The problem of Uncertainty and its Solutions
Most people who enter into plea agreements want to know exactly what they are going to get. One of the downsides of going to trial is that the result is never certain. You may win and you may lose at trial and there are no guarantees. However, in plea agreements there can be much more certainty. For example, if a person is charged with a felony drug crime but is offered a plea deal whereby the prosecutor agrees that the charge will be reduced to a misdemeanor drug offense and the prosecutor will recommend the sentence of a fine, the defendant is likely to get just that: a felony reduced to a misdemeanor with no jail time and no probation. While judges do not have to follow sentencing recommendations, in many counties in the state of Nebraska the judges will follow the recommendations.
In federal court, criminal defendants who want certainty may pursue what is known as an 11C(1)c agreement whereby the prosecution and the defendant agree to a specific term under the federal sentencing guidelines
Lancaster County is Different
Lancaster County is different than the examples above. In Lancaster County, the county attorney’s office does not to make specific sentencing recommendations as part of any plea agreement. If a criminal defendant gets a felony charge reduced to a misdemeanor but does not get a sentencing recommendation, he has complete uncertainty as to whether the plea will result in jail time, probation or a fine. While there is the advantage of getting the case reduced from a felony to a misdemeanor the uncertainty about the penalty phase is still there.
The Lancaster County plea agreement becomes less valuable when a serious felony is reduced to a less serious felony. For example a person who is stopped on the interstate with 100 lbs of marijuana will be charged with possession with intent to distribute marijuana and faces a prison sentence of 0-20 years. If that person accepts a plea agreement to reduce the possession with intent to distribute to a lower level felony carrying a sentence of 0-2 years, there may be no real advantage to taking the deal. Even though the maximum sentenced is reduced, it may not make a difference at sentencing. The crime that has a penalty of 0-20 and the lesser crime that has a penalty of 0-2 could both result in a jail or prison sentence of up to 2 years and a felony conviction.
The Risk
Statistically, most cases do not go to trial, most cases result in plea agreements. However, one of the greatest advantages to a plea agreement is the certainty. However, in places like Lancaster County, where the prosecutors will not recommend a specific sentence, a plea agreement may not provide the certainty or the benefit the defendant is seeking. For some people this is unacceptable, for others this is a risk that can be mitigated through strong advocacy at sentencing.
