Learn what happens when the defense doesn’t get what it bargained for.
Only trial courts (in essence, judges) have the power to impose sentences—a court’s refusal to sentence a defendant according to the terms of a plea bargain isn’t a breach of the agreement by the prosecution.
In some states, as long as the prosecution or judge informs the defendant that the court has the power to impose a harsher sentence than provided in the plea bargain, the defendant is stuck: He or she cannot withdraw the plea. In other states, defendants have an absolute right to withdraw their pleas if the court imposes a harsher sentence than contemplated in the plea bargain.
Example: Eric agrees to plead guilty to robbery in exchange for the prosecution recommending a sentence of three years’ imprisonment. The judge accepts Eric’s plea, and the prosecution recommends three years. But the judge chooses to sentence Eric to five years. In some jurisdictions, Eric would have an absolute right to withdraw his plea. In others, if he was informed that the court had the power to impose a harsher sentence, then he may not be able to withdraw the plea, depending on that jurisdiction’s laws.
The usual purpose of a plea bargain for a defendant is to get a better sentence than the one a judge would dole out after a loss a trial. But, occasionally, a prosecutor may agree, through a plea bargain, to take a particular action, then fail to follow through. In that situation, there’s been a breach. The question becomes: Why agree to a plea if the prosecutor doesn’t control the sentence?
Most trial courts tend to follow prosecutors’ plea-bargain recommendations. And prosecutors have several other ways to affect sentences.
Control over charges
Prosecutors have the power to charge defendants with crimes—it’s up to them to choose the charges. Since it’s the prosecution, and not the trial court, that determines the charges, the prosecution can agree to drop one or more or to reduce them as part of a plea bargain. If the prosecution fails to drop or reduce charges as it agreed to, then it has breached the bargain.
Although the prosecution doesn’t have final say over a defendant’s sentence, it has the power to agree to either recommend a certain sentence or not make any recommendation at all. Thus, another type of plea-bargain breach occurs when prosecutors recommend a different sentence than what they agreed to, or recommend a sentence after promising not to do so. For example, a prosecutor might violate an agreement by taking a particular position on:
- probation, parole, suspended sentence, or alternative sentencing
- consecutive or concurrent sentencing, or
- credit for time served.
Other sentencing breaches
There are other ways prosecutors can breach plea bargains. For example, the prosecution might go back on a promise:
- to agree to unsupervised probation
- to refrain from calling witnesses to testify at sentencing, or
- to request a lower fine.
Was it a Breach?
Although a plea agreement is a contract, due process trumps contract law. So, a plea bargain is subject to much closer scrutiny than a typical contract. Because the state has so much more bargaining power than a defendant, courts tend to resolve conflicts, like those resulting from ambiguities, in favor defendants.
Beyond that, though, defendants have a constitutional right to enforcement of a plea bargain that’s been accepted by a court.
The defendant bears the burden of establishing by a preponderance of the evidence that the prosecution violated the plea agreement. Factors the court usually considers in analyzing an alleged breach include:
- whether it was the prosecutor or the defendant who breached the agreement
- whether the prosecution intentionally or inadvertently violated it
- whether there’s been a change in circumstances since the plea bargain, and
- whether the defendant wants to get out of the plea bargain.
Even though the prosecution’s intent is relevant, mistake usually isn’t a defense to it breaking the bargain. Indeed, the defendant may be entitled to relief even if the prosecution broke the agreement inadvertently.
When a court applies the factors above to determine whether a breach occurred, it typically evaluates the parties’ “reasonable understanding” at the time they entered into the agreement. If the court finds that the prosecutor did in fact breach the bargain, it must then determine the proper remedy.
Remedying a Breach
The appropriate remedy for a prosecutorial breach of a plea bargain depends heavily on the circumstances. That said, remedies for plea-bargain breaches usually come in one of two categories: withdrawal of the plea (discussed above) or specific performance (in other words, imposing the actual agreement). Courts have a good deal of discretion in determining the remedy for breach of a plea agreement.
Example: If the prosecutor asks for a steeper fine than she agreed to in the plea bargain, the appropriate remedy would probably be specific performance—in this instance, that would mean the court simply imposing the agreed fine.
Consult an Attorney
It’s very important to seek the advice of an attorney before agreeing to a plea. Legal advice is also crucial when it comes to challenging a plea. Laws regarding the available pleas and their requirements vary from state to state, and each case can present its own complexities. Only an attorney familiar with the laws of your jurisdiction will be able to adequately explain the law and help assess your options.