“Every County Prosecutor and the Director of the Division of Criminal Justice shall, no later than October 31, 2016, develop and issue a written escalating plea policy for their office that shall apply to all indictable crimes, not just to offenses that are charged by means of a complaint-warrant or to cases where the defendant is detained pending trial under the Bail Reform Law. The Prosecutor’s policy shall take effect no later than January 1,2017. The County Prosecutor or Director may periodically revise or supplement the escalating plea policy as appropriate.
Each policy shall include, but need not be limited to, the following provisions/features:
(a) the policy must provide for tendering an initial plea offer based on an objective and realistic assessment of the seriousness of the criminal conduct, the strengths and weaknesses of the State’s case, the defendant’s culpability and background, the interests of any victim, the likely sentence that would be imposed if defendant were to be convicted after a trial, and such other relevant facts and circumstances as the policy may account for;
(b) the policy must require that an initial plea offer, and all subsequent plea offers, shall include an explicit date, or preferably a court event (e.g., indictment, pretrial conference, hearing on motions, etc.), at which the offer automatically expires unless the time within which to accept or reject the plea offer is extended by the prosecutor. Although prosecutors must be mindful of the need for swift justice and a defendant’s timely acceptance of responsibility, an extension of the current plea offer may be warranted, for example, to ensure that defense counsel has a reasonable opportunity to review all required discovery and to consult with the defendant as to the likelihood of conviction at trial and the impact of the escalating plea policy on the defendant’s penal exposure. In some instances, when feasible, it would be appropriate for a plea offer to announce specifically what the next plea offer will be once the current offer expires barring a material change in circumstances that might warrant a greater or lesser offer. See Brimage Guidelines, §4.7. Some defense counsel report that this practice helps them to convince their clients that the escalating plea policy will be enforced and that it is in their best interests to accept the current offer.
(c) the policy must provide that once a plea offer is rejected or expires, any subsequent plea offer must call for greater punishment (e.g., a longer term of imprisonment, higher fine, elimination of offered downgrade, etc.) than the previous plea offer, unless a supervisory assistant prosecutor or deputy attorney general determines that a material change in circumstances warrants a sentence more lenient than the one contemplated in the previous plea offer;
(d) the policy must be designed to encourage defendants to plead guilty before indictment and thus before any post-indictment evidentiary hearings (e.g., motions to suppress evidence);
(e) the policy may permit negotiation between the prosecutor and defense counsel (e.g., arguments concerning the strength of the case and likelihood of a guilty verdict, outcome of suppression and other pretrial motions, defendant’s culpability and role in the criminal scheme, etc.) before an initial plea offer is tendered, and during the period of time when a tendered plea offer remains outstanding and has not expired;
(f) the policy shall not require a defendant to agree not to apply for Drug Court, or otherwise categorically preclude a defendant from being sentenced to Drug Court, where the defendant is clinically and legally eligible to be sentenced to treatment in lieu of imprisonment pursuant to J.S.A. 2C:35- 14 (special probation) or N.J.S.A. 2C:35-14.2 (compulsory Drug Court ordered by the court without application by the defendant); and
(g) the policy may provide that a plea offer is contingent on co-defendants pleading ”
As a practical matter, section (e) means that defendants who retain attorneys to get involved in the negotiation process very early on will be at a distinct advantage. Many prosecutors would be willing to accept a disposition on terms that are acceptable, but too good to reduce to a written record that might lend itself to an argument that they are being too lenient. Sub-section (g) will inevitably cause some “peer pressure” amongst co-defendants that want to accept a fable offer but cannot do so unless another co-defendant(s) also pleads guilty.