Bail Reform: 11th Hour Plea Offer

by | Feb 25, 2017 | Blog, Criminal Law, Law Reform and Amendments

Bail Reform“The vast majority of convictions in this State are the result of a negotiated guilty plea, rather than a trial. As noted in Section 1.3, it is expected and intended that under  the Bail Reform Law, many defendants who previously would have been unable to post monetary  bail will be released on   a complaint-summons , or if a complaint-warrant is issued, will be released on recognizance or on non-monetary conditions. These defendants, hoping to delay their incarceration upon conviction, may have a reduced incentive to accept responsibility and plead guilty in a timely fashion.  This will have a significant impact on the goal of swift justice. It therefore is necessary to develop and adapt prosecution policies and practices to encourage those defendants who plead guilty to do so at the earliest opportunity, before the expenditure of significant  prosecution  and judicial resources.

A study conducted by the Office of the Public Defender reveals that under current practice, as the date for trial approaches, prosecutors often tender an eleventh-hour plea offer that contemplates a more lenient sentence than the one contemplated by a previously-tendered offer. As a result of this common de-escalating plea offer practice, defense attorneys perceive a tactical advantage in advising their clients to hold off accepting a prosecutor’s plea offer in the expectation that a more generous offer will be forthcoming.

To prevent or at least minimize delays in both detention and non-detention cases under the Bail Reform Law, it will be necessary for every County Prosecutor’s Office and the Division of Criminal Justice to implement and strictly enforce an escalating plea policy. One of the key features of any such graduated plea system is that all plea offers must account for the timing of the plea, and generally provide for a longer sentence if the defendant pleads guilty after indictment to account for the additional investment of resources to prosecute  the case and the unwillingness  of the defendant  to accept responsibility  in a timely  fashion.”

This is almost certainly a snub to the Office of the Public Defender. The mentioning of the all-too-common eleventh hour plea offer by prosecutors during the negotiation of the details of the Bail Reform Law would have bothered law enforcement. The response is to essentially say to the Public Defender’s Office that “thanks to your efforts, your clients will now receive less favorable offers with each court date.