“The escalating plea system required by this Directive will represent a change in practice for many County Prosecutors’ Offices in non-Brimage cases, as shown by the Public Defender study that reveals that defense attorneys expect that plea offers routinely will become more lenient, not tougher, as a case progresses through the criminal justice process. It may take some time, therefore, before the defense bar and the judiciary fully appreciate the prosecutors’ commitment to a graduated plea system where plea offers routinely become tougher overtime. While assistant prosecutors and deputy attorneys general will be responsible for explaining the requirements of this Directive to defense counsel, there undoubtedly will be a transitional “learning curve” period during which defense attorneys will be skeptical of a prosecutor’s resolve to enforce an escalating plea policy. This may result in trials in cases that might otherwise have pled guilty at the last minute under the current system. Such trials may be necessary at the outset to help change the legal culture to achieve the long-term speedy trial benefits of a graduated plea system that rewards the timely acceptance of responsibility rather than procrastination and delay tactics.
This Directive, unlike the Brimage Guidelines, does not specify the sentence that should be imposed pursuant to a plea agreement. Nor does this Directive encourage, much less require, that the escalating plea policies issued by County Prosecutors indicate the specific sentences or range of sentences to be imposed on conviction for various offenses. This Directive, in other words, differs from the Brimage Guidelines in that it does not limit a prosecutor’s authority to determine the appropriate initial plea offer accounting for all relevant circumstances. Rather, the key feature of the escalating plea policy required by this Directive is that whatever the initial plea offer might be once it expires, any second or subsequent plea offer must contemplate greater punishment than the expired offer unless a designated supervisor determines that there has been a material change of circumstances in the case warranting the same or lesser sentence than the previous offer contemplated.”
This is “pie in the sky” thinking from the Attorney General. People are people and by and large have the same motivations in every job. They do not want to do work, especially the great deal of work involved with preparing and conducting a trial, when the work is seen as pointless and unnecessary. It is anticipated that the escalating plea and plea cut-off rules are routinely avoided by defense attorneys that are willing to stand firm in not accepting an escalated offer when their client stands ready to resolve the case through an offer that a prosecutor previously found to be acceptable. On the other hand, there will always be a lot of profit-motivated lazy defense attorneys that use the escalating policy to coerce their clients into pleading guilty before any real time and effort has to be put into their defense.
