Do I have to take the plea bargain offered by the prosecutor?


A “plea bargain” is an agreement between you and the government where you agree to plead guilty to all or some of the charges against you, and the government agrees to drop some charges, reduce some charges, or recommend a reduced sentence to the judge.  There are dozens of different ways to work out a criminal case, all the way from your lawyer talking the prosecutor into dropping your case, to your case going to trial in front of a jury to be decided.  Statistics show that over 90% of criminal convictions come from negotiated pleas, so less than 10% result in trials.  Your lawyer is under an obligation to explain all of your options to you so you can understand them, and to advise you as to the best course of action.

In Mississippi specifically, plea bargaining is government by Rule 8.04(B) of the Uniform Circuit and County Court Rules.  This rule encourages plea bargaining, stating:

“The prosecuting attorney is encouraged to discuss and agree on pleas which may be entered by the defendant. Any discussions or agreements must be conducted with defendant’s attorney, or if defendant is unrepresented, the discussion and agreement may be conducted with the defendant.”

But understand this:  No one can force you to accept a plea bargain.  Not the judge, not the prosecutor, not your lawyer, and certainly not Clarence Guthrie.  Rule 8.04 goes on to state:

“Defense attorneys shall not conclude any plea bargaining on behalf of the defendant without the defendant’s full and complete consent, being certain that the decision to plead is made by defendant. Defense attorneys must advise defendant of all pertinent matters bearing on the choice of plea, including likely results or alternatives.”

Your lawyer is also under an ethical obligation to let you make the decision on the most important aspects of your case, including the decision on whether to accept a plea bargain.  Mississippi Rule of Professional Conduct 1.4 states “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

So the ultimate decision on whether to accept a plea bargain, pleading guilty in exchange for reduced charges or a reduced sentence, is yours and yours alone.  A good lawyer is going to size up the evidence in the case, advise you to as to any defenses you may have, make a recommendation, answer any questions you have, and then let you make the call.  Once you have made the call, the lawyer has their marching orders.  

Here is my take on it:  In my opinion the worst reputation that a criminal defense lawyer can have is to be known as a “plea machine” – a lawyer who takes money from his clients and then encourages them to accept a plea at the earliest opportunity.  This type of lawyer will breeze over the evidence, and will not try your case if it needs to be tried. 

When analyzing a case with a client, I can’t help but fall back on the things I learned in the Marine Corps, and I wind up referencing the teachings of Sun Tzu:

  • He will win who knows when to fight and when not to fight.
  • If equally matched, we can offer battle; if slightly inferior in numbers, we can avoid the enemy; if quite unequal in every way, we can flee from him.
  • If you know the enemy and know yourself, you need not fear the result of a hundred battles.  If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.  If you know neither the enemy nor yourself, you will succumb in every battle.

If you come to me with your criminal issue, after we investigate the case, analyze the evidence until you understand it, and I make a recommendation, then if you ultimately want the case to be tried, it will be tried.  It is a fact that most cases, civil and criminal, settle short of trial.  But I have found myself in court a pretty good bit lately, and that is fine with me.