Plea or Trial (Part 1)

I recently gave a presentation in Atlanta at the NARSOL conference. If you would like to watch it, in a few months this will be available through NARSOLs YouTube channel. Additionally, I will be giving this same presentation at ACSOL in September. I’d like to share the factors required to choose whether to take a plea deal or go to trial, as discussed in my presentation. This is a lot of information so I am splitting this up between a number of posts.

People reach out to me regularly asking if they should take a plea or go to trial. OR if a plea they have been offered is a ‘good one’. 

I have found over the years that there are 4 pieces of information you need on hand in order to decide these two questions when charged in a case of police proactive sex stings. When you have these four answers, you will know if a plea is ‘good’ or not, and you will have a gauge on your chances at trial.

The first area of information you need to gather is your own state laws, or federal laws if you have been charged federally. Additionally, sometimes the state will send your case up to federal if they choose. If that happens you need to start back here again with the federal laws.

While you can do this research yourself, your defense attorney should know, or have easy access, to these answers. It starts with a sentencing grid. I am attaching Jace grid for an example here. Yours may not look exactly the same but should give the same information.

My sons charges were attempted rape of a child in the second degree (count 1), and communicating with a minor for immoral purposes (count 2).

Make sure your offender score accurately reflects your history. If you have no criminal history you *should* have an offender score of zero. If not, question it and have your attorney correct it with the courts, if necessary.

Some prosecutors will try to split the charges to up the standard sentencing range. By splitting the charges, saying they are two separate occurrences, they will try to raise the offender score to include the second charge. Your attorney should spot that, and fight it. This is one incident, whether it happened over days or even months does not matter. First response to law enforcement until arrest is all ONE incident.

The next thing shown will be the standard sentencing. This is what someone without any mitigating factors, or upward departures, would most likely get. In these cases there are ALWAYS mitigating factors, and hopefully no upward departures. Upward sentences would be caused by “plus enhancements”. Examples of these might be bringing a weapon to the trap house, having a camera to film the incident, or items like rope and ducktape to force or abduct someone.

The mitigating factors will be that this was created by LE, therefore the ‘victim’ was an active and willing participant. In fact they encouraged you to come meet them. Repeatedly.

Many of those who do go to meet the undercover will be young, so use the youth mitigating factor. Same goes for mentally impaired as in ADHD, Autistic spectrum, or any mental deficiencies. You can even, in some cases, use drunk or high as a downward departure reason. Certainly PTSD and depression when showing you are receiving treatment to alleviate the issue.

There are other options for downward mitigating factors. Have your attorney show you a list and go through each one.

You also need to be aware if your state has either civil commitment or indeterminate sentencing. I knew nothing of these in 2017, but these can make your plea deal of 2 years turn into 10. All legal. In Jace grid above, the fact that WA state uses indeterminate sentencing is reflected by the word “Life” under maximum sentence. This applies even if you take a plea deal and do not opt for a trial. Be aware!

Your state may have mandatory minimums that could affect both plea deal and trial sentencing as well.

And lastly for this section, you need to know what people in a similar situation are receiving for plea deals AND at trial. In the state of WA, most people charged in proactive stings were receiving 5 to 7 years at trial. So a plea deal in WA state for 10 years is…yup…not a good deal for someone with no prior criminal history!

Get the facts up front on all these issues, as well as the other three key steps I will discuss, BEFORE making any decisions!

With knowledge comes power!