Bail Reform: Judges Participating in Plea Negotiations

“As noted in Section 12.1, defense attorneys understand that it has until now been an effective strategy to advise clients to decline the prosecutor ‘s initial plea offer with the expectation that a more generous offer will be presented as the trial date approaches. This de facto “de-escalation” plea policy confirmed by the Public Defender’s recent statewide study rewards delay and thus discourages guilty defendants from making a timely acceptance of responsibility.

The same practical effect results when a trial court indicates that the sentence it is inclined to impose if defendant were to plead guilty is less than the sentence contemplated by the prosecutor’s latest plea offer. See  R. 3:9-3(c) (if no tentative agreement between the prosecutor and defense has been reached, a court is authorized to indicate “the maximum sentence it would impose in the event the defendant enters a plea of guilty, “provided that such judicial participation in plea discussions is done “with the consent of both counsel.”). Although a court’s indication as to the maximum sentence it is likely to impose is intended to forestall an imminent trial, from a broader resource management perspective, this practice may be penny wise and pound foolish, sending a message to other defendants that delay in accepting responsibility pays dividends. If a court offers the functional equivalent of a plea offer that is more generous than the offer tendered by the prosecutor, it encourages defendants to first exhaust the traditional plea-bargaining process, and then look to judges to offer the prospect of a more favorable sentence if the defendant pleads guilty. That practice would neutralize the beneficial effects of an escalating plea policy.”

This is nonsensical. Since the initial consultation with a judge often does, and always can happen at the same time as the initial consultation with the prosecutor, no time is lost by looking to the judge for what their likely sentence would be. The only reason to discourage judges from participating in plea negotiations is to ensure that prosecutors wield as much power as possible.