Prosecutors Are NOT Required To Offer A Plea Bargain

June 13, 2014

So I was visiting a client the other day, incarcerated on a particularly bad case for me factually speaking, to deliver the exciting news that the prosecutor had offered a plea bargain!  And in my professional opinion it was a pretty good offer given the circumstances.  But, despite my best efforts to convey how sweet of a deal it really was, my client just couldn’t see it; wasn’t interested.  I was beside myself.  I couldn’t understand.  “Frustrated” seems like a bit of an understatement.  Finally, after way too much back and forth, I demanded a straight answer as to why my client was willing to throw this offer away and virtually guarantee substantial prison time.  The response, in sum and substance, was that they were holding out for the next offer, which would obviously be better than the current one.

Ummmmmmmm…come again?

     “Well,” says the client, “everyone else upstairs says that when they got popped on their last charge, the DA came back with a couple offers and each one was better than the last, because that’s how the system works…And their charges were a lot worse than mine!”

     And there it was. “Everyone else upstairs”…..ah, the jailhouse lawyer, or in this case, jailhouse law firm…the bane of my existence…

     After releasing the white-knuckle grip on my pen, and without launching into a diatribe about the innumerable problems – and just sheer stupidity – of taking advice that would ruin the rest of their life from not only one but an entire pod of jumpsuits who aren’t smart enough to get out of their own way and are on their 4th or 5th go-round in the criminal justice system, I simply explained that I really don’t care what happened in anyone else’s case because every case is different, and the facts of each case dictate how we and the prosecutor proceed. Oh, and by the way…

You do NOT have a Constitutional right to receive a plea bargain from the D.A.!!!!!

     The D.A. has one overriding obligation when prosecuting a case: to represent the People of the State of New York in its pursuit of justice.  That’s really it.  Of course, there are ethical and legal obligations and a sense of fair play that a prosecutor must abide by in the course of that pursuit, but the “obligation to offer a reduced plea” is not one of them.  Because of the tremendous caseload of D.A. offices around the country, plea bargaining has become a dominant feature of the criminal justice system in an effort to keep the cases and court calendars moving along.  If there were no plea bargains, the entire criminal justice system would implode under the immense weight and expense of constant trials.  Obviously, we can’t have that.

     That does not mean, however, that you are guaranteed to receive an offer to plead to a reduced charge or get some time shaved off a sentence.  For the most part, whether to offer, and the terms of, plea bargains are left primarily to the discretion of the D.A.’s office (with final approval of any deal ultimately left up to the judge).  In some cases there are statutory restrictions on what plea bargains are authorized based on the original offense (for example, DWI charges are statutorily prohibited from being plea bargained to anything outside of a VTL 1192 violation – with very limited exceptions).  Whatever the situation, we, as criminal defense attorneys, do our best to research and investigate each case in an effort to give prosecutors reasons why the best possible plea bargain is appropriate.  Sometimes they listen, sometimes they don’t.  But guess what? If your case is a dog at the start and any hope of a viable defense is diminishing by the second or nonexistent from the get-go, you don’t have a lot of cards to play, and there simply may not be a reason for the prosecutor to offer any deal at all (other than their own time crunch).

     And while I’m sure that three time felon with whom you spoke openly about your case is positive he knows enough about you, your facts and the system to offer you top-notch legal representation, do me a favor and listen instead to that guy or girl to whom you or your family paid a lot of money so that you could benefit from their knowledge and experience in situations just like this, ya know, your attorney….and not the recidivist in cell # 9.

(FYI, this “client” and the conversation itself are in reality a hodgepodge of a few of my favorites and not representative of any one client, past or present).

*** Any criminal charge (and/or plea offer) should be discussed thoroughly between the defendant and his or her attorney.  The attorneys at Catalano & Carpenter LLP have over 30 years combined criminal defense experience, including trials and plea bargains.  Contact us today at (845) 454-1919 or at for a free consultation.