The wisdom of “open pleas”

Earlier today, Miranda and I discussed the wisdom of “open pleas”. What I mean by that is a plea entered into by a defendant, where the state makes no recommendation as to the sentence; in fact there is no agreed upon sentence as part of the deal. All the defendant agrees to do is to plead guilty and let the sentence be dictated by the judge. It may be 5 years; it may be 35.

My opinion is that these pleas are useless. They provide absolutely no benefit to the defendant and one might as well go to trial. I also have a hard time believing that the state will make no offer.

Miranda, on the other hand, does see some utility to these pleas. She believes that when the state is playing hardball, but you have horrible facts, you might just want to leave it to the judge to give the defendant some consideration for sparing the expense of trial.

What do you guys think? Would you ever plead a defendant to such a deal?


6 thoughts on “The wisdom of “open pleas”

  1. Gideon Post author

    I think there’s a difference between what you’re saying and what I meant by an open plea. If the sentence is, say, a cap of 5 years with the right to argue for less, then sure.

    But if sentence is “whatever the judge wants to give you” with no recommendation by the state, then I think you’re putting the client in a really bad spot, because you have no indication at all of what he’ll end up serving.

    Recently, I saw a guy plead to murder with no agreed upon sentence. What the heck is the point of that? If you’re going to plead to murder with no low sentence agreed upon beforehand, might as well go to trial! IIRC, this guy got 60.

  2. Miranda

    Oh, Gideon. So, this is how your going to force me to participate – by misquoting me?? While I do believe there can be some value to an open plea, I don’t remember saying anything about a situation with horrible facts. If we’re talking about truly horrible facts, I don’t know that I would have my client enter a guilty plea without a cap in place. But I’m sure there’s some possible circumstance or set of facts that would trigger an exception to that rule…

    I do, however, remember discussing the opposite. Sympathetic defendant, sympathetic facts, crappy numbers from the state. If, as Audacity noted, you know your judge and feel confident that he/she will do the “right” thing, you may do well for your client opting for an open plea. In my experience, judges do reward clients who accept responsibility and avoid trial. I think this is particularly true where you’re sparing the victim having to testify at trial and where you have a client who genuinely accepts responsibility for his/her actions and will exhibit sincere remorse to the judge.

    We also discussed a situation in which the state’s proposed cap is, in your view, way too harsh. Depending on the judge and the facts, your client might be better off with no number at all. The very cynical part of me believes it is easier for a judge to shave a couple of years off of the agreed-upon cap to give the impression that he/she gave consideration to the defense (meaning your number will never end up being very far from the cap), rather than really thinking about and choosing an appropriate sentence based on what’s before the court.

    In short (too late, I know), I don’t think we can say open pleas are always useless or always detrimental to our clients.

  3. Steve Smith

    I have only done one or two of these when I thought the prosecutor was really overreaching and that the judge would be much more sympathetic to an acceptance of responsability pitch than the prosecutor thought.

  4. anonymouse

    I regularly have clients take an open plea — and where I practice it isn’t uncommon. With that said, it usually like Audacity states, you have some understanding of what the judge is likely to do (such as you for first offense possession she gives probation w/rehab if indicated) or has stated she won’t hurt the client worse than the state’s offer after the state has formally taken offer off table.

  5. Salmon Chase

    The problem, of course, with the thought that your client might get some consideration from the judge for saving the state the expense of trial is that it means our clients are punished for going to trial.

    Clearly, a punishment enhanced because a case was taken to trial is illegal as a matter of law, but we know it happens all the same…


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