South Carolina Criminal Attorney Blog

Plea bargains have been around for a long time. They most likely began as a result of over-crowded courts. Nothing has changed. Trials take up a great deal of time. Even just one trial. And with thousands of cases coming through just one court, its literally impossible to take every case to trial. The solution therefore, is for the defense and the prosecution to cut a deal. This is usually fine with everyone involved, except for the victim of course, who usually wants full punishment.

For the defendants, the primary benefit of a plea bargain is that they get a lighter sentence that might otherwise have gone to trial and ended up with a far more severe charge should they lose. For those who do not qualify for a public defender, they can often save money, as most private lawyers will charge more if they are convinced that a case will go to trial. The reverse is true for the prosecutor, solicitor here in South Carolina, in that some sort of a conviction is better than no conviction at all; assuming that the prosecutor would have lost the trial.

There are some other benefits:

Being release from jail.
Its amazing just how long some people sit in jails awaiting trial. This is especially true here in Myrtle Beach and Horry County, where our system is tremendously backed-up. To sit in jail in this area is not picnic, with over crowding in our county detention center as it is. That would be J. Reuben Long Detention Center. That jail has had three times the capacity it was built for incarcerated and has resulted in inmates sleeping on the floor. Being a prisoner incarcerated under those conditions wears a person out. Often they lose their will to fight and they accept a plea offer that they normally would not, just for the sake of getting out of jail. And there is only so much that an attorney can do to help a person get out of jail and/or go to trial. As far as getting out of jail, the lawyer is pretty much limited to getting the defendant a bond hearing and arguing for a low bond. That is about the extent of what the attorney can do to get someone released pending their trial. As far as getting the actual trial to begin, the defense attorney's hands are completely tied. Defense attorneys have no control or input into the docket or court management. And seeking a "speedy trial" is not what people think it is. The so-called constitutional right to a speedy trial should be an article in itself. In many respects, it doesn't exist. Unless there is some sort of an exigent circumstance such as a crucial witness on his/her death bed, about all a defense attorney can to for a speedy trial is to file a motion for one, and then sit. Our Supreme Court here in South Carolina has held in one case that eight years is not a violation of one's right to a speedy trial. These are decided on a case by case basis, but the point is, by and large the right to a speedy trial will not expedite the getting out of jail process.

Resolving the case quickly:
There is also the matter of family members who suffer as a result of that incarceration, and income not being made, and the list goes on and on. There is stress on everyone involved and not just the defendant.

Having less of a serious criminal record:
Pleading guilty in exchange for a reduction in the number of charges or having one particular charge reduced to a lesser charge, will result in less impact on the defendant's criminal record. This not only affects the person regarding job opportunities, but could also have a devastating affect in the event that person is convicted again in the future. And then there is always the possibility that with some crimes there can be a reduction to a lesser charge that could later be expunged, and thereby clearing the person's record altogether. Plus, many potential employers look at misdemeanors in an entirely different light than they do felonies, despite certain fallacies with that line of reasoning.

And there are other reasons:
Such the social stigma of being convicted of certain crimes. For example, a solicitor might take a rape case to trial, but be willing to reduce it in a plea negotiation to an assault and battery charge. Although having a criminal record for a assault and battery is not something that anyone would want on their record, it certainly would not be as hard to live with as a rape conviction. For various reasons, too many to explain here, there are defendants that have legitimate fears for going to prison in that they have fears of being harmed or even killed in prison. There are other reasons as well as these. And often defendants have more than just one of these reasons.

Judges and Prosecutors benefit as well: Again, for the most part, its usually just the victim that is really upset about the plea bargain process. But defendants are not the only ones that have an incentive to plead guilty. For the judge, the main incentive is to keep the cases moving, especially in those courts where the docket is over-loaded like it is here in Myrtle Beach and the rest of Horry County. That would include the other county in our circuit, Georgetown County. It also amounts to less work the judge would have to do. The average plea takes around 10 to 15 minutes. Trials on the other hand very seldom take less than at least a half of a day and for the most part, will eat up an entire day of everyone's time, including the judge. Most trials take longer than one day and depending on the particular case could take much, much more than just a day. And for the prosecutor, they always have more cases than they should. Their primary goal is to constantly move and resolve those cases. A prosecutor could possibly resolve 30 to 50 cases in one day through pleas. Compare that to the length of time for taking a case to trial, and there is no comparison.

Pleas are also far less of a strain on the entire system. Plea bargains save the government a tremendous amount of money. There are so many other people involved in the court system that this affects as to costs, such as law enforcement, clerks, staff, computers and office equipment, and so forth. The court system in this county was never designed nor built to accommodate the number of criminal cases. If every criminal in this country was to was to reject any sort of a plea and insist on their constitutional right to a jury trial, our system would shut down.

The short answer is, Yes. We all know that things such as weak evidence, possible defenses, questionable witnesses, various legal issues, and so forth can prompt the prosecutor to reduce a criminal charge. But don't limit yourself. There's sometimes other and rather novel approaches to this. This is best illustrated by sharing an experience I just had this week. The following summarizes how an attorney can sometimes go with the less common approach.

The judge just grinned and the prosecutor came right out and laughed. That is how ridiculous they both thought the idea of probation was when the prosecutor told the judge at the bench prior to the sentencing hearing that the attorney was going to ask the judge to give his two clients probation when they were arrested for Trafficing.

Just before the guilty plea hearing started, the prosecutor and myself decided we should approach the bench (off the record), and give him the heads-up on why the Charge of Trafficing Cocaine was being reduced to Possession with Intent to Distribute. That is next to never done, which is exactly why the prosecutor was laughing when he told the judge at the bench what I was going to ask for.

Here is what happened. I represented a husband and wife. He was 64 and she was 57. They were both charged with Trafficing Cocaine out of their home. It was enough cocaine that there was a mandatory minimum sentence of seven years, on a 7 to 25 year charge. After they hired me I looked at the discovery and it was a text book arrest. Everything from the surveillance to the search warrant to the Miranda to the preliminary hearing. My point is that there was no wiggle room as there was no defense whatsoever. This would have been a slam dunk for the prosecutor if taken to trial.

The prosecutor offered my clients the minimum of seven years. Although that is the lowest they could have received for that particular charge under the law, its still hard to accept. Seven years is a very long time in prison when you are convinced that your client's have learned their lesson and will never be arrested again. And that was how I felt.

Every time my clients would come into my office, the husband would be carrying an oxygen tank that every couple seconds would make this hissing sound that I couldn't stand. And the wife was so thin she looked like she just got run over by one of the machines that smooths out new pavement. So I started asking about their health. Come to find out that he had seven heart attacks, was a diabetic and had some disease in which he was in the "last stage" of. I didn't understand the disease, but I did understand how awful the term, "last stage" sounded. When I asked her, she replied with 3 or 4 medical terms that I sill cannot pronounce. So what I did was I asked them both to go their doctor and have the doctor write me a letter outlining how poor their health was.

I then sent the doctor's letters to the prosecutor on the case and I explained that not only was there almost a total lack of a criminal record, and one was 64 and one was 57, and in my humble opinion it was likely that at least half of the husband and wife team would not outlive a seven year prison sentence. And based on that, would they consider reducing the charge to something lessor that did not carry a minimum sentence.

Much to my surprise, in fact the only time I have ever heard of such a thing, about a week later I received a letter from the solicitor who explained that he took my letter to his boss and his boss gave him permission to reduce their charges to Possession with Intent to Distribute, which did not carry a minimum sentence. He went on to explain that my client could plead to this, but that he was still going to request that they get seven years. They call this a "substantial departure." So when we were at the judge's bench explaining what was going on, that is when the judge grinned and the solicitor laughed. In all honesty, I didn't fault the solicitor for finding it funny. Having a judge give a defendant probation who was arrested for the most serious drug dealing statute on the books, is kind of funny when you stop to think about how remote the chances are.

About 20 minutes later, the solicitor wasn't laughing anymore. The hearing was over and I had explained that only one of them had a prior arrest and it was only one arrest and it was 14 long years ago, and the two defendants were 64 and 57, and just how terrible their health was, and what a shame it would be if one of them died in prison for this, and how I was convinced that these two would never see the inside of a courtroom again if you give them probation, and we could in fact have justice if they were put on probation, the judge did just that.

I take my hat off to the solicitor and to his boss that gave the approval for reducing the charge. That is not something that they normally do and they were under no requirement to do such a thing whatsoever. I was quite impressed with their sense of fairness and compassion.

So I suppose that the moral of the story is that the evidence, the defendant's record, possible defenses, and so forth, although it the typical and common basis for seeking a reduction in the charges, is not the only basis of negotiations and requests for a reduction. Never limit yourself and don't be afraid of being creative. Its certainly can worth a try.

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