“Barring a material change in circumstances warranting an exception, the general rule must be that plea offers grow tougher over time, not more lenient. Any such graduated plea system not only provides practical incentives for guilty defendants to plead guilty before significant time and effort is expended in grand jury presentations, post-indictment motion practices, and trial preparation, but also encourages defendants to cooperate and provide substantial assistance in investigating and prosecuting other offenders. The concept of an escalating plea system, where plea offers become tougher over time, is hardly new. The Division of Criminal Justice and some County Prosecutors’ Offices already employ such a practice, at least in certain types of cases. Furthermore, in drug trafficking cases involving a mandatory term of imprisonment waivable only pursuant to N.J.S.A. 2C:35- l2, all prosecutors are required to implement the escalating plea system established in the Attorney General’s “Brimage” Guidelines. Similarly, in cases involving aggravated sexual assault against a victim who is less than 13years old, all prosecutors are required by Attorney General Guidelines to enforce a strict escalating plea policy if they tender a plea offer that reduces the stipulated 25-year sentence pursuant to N.J.S.A. 2C:14-2(d). See Section 4, Uniform Plea Negotiation Guidelines to Implement the Jessica Lunsford Act, P.L. 2014.c. 7 (May 29, 2014).”
The problem is that prosecutors have little motivation to thoroughly assess the strengths and weaknesses of their cases before making their initial offers. This is understandable to some extent since it is true that the vast majority of cases resolve without trials. Thus, in the vast majority of cases, a thorough assessment of the state’s case appears to be unnecessary. Still, a small minority of cases has the potential to create an enormous backlog in the system given the amount of time and resources involved with conducting a criminal jury trial. The Directive overlooks how common it is for prosecutors to deviate from the Brimage Guidelines in order to resolve a case, at least when dealing with hard-working defense attorneys.
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