“This offer is only good today.”

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of trial.

During the first half of my stint as a prosecutor, I began a practice of filing and serving a written schedule of plea offers at the first arraignment on the indictment.  Few in my office did anything like that, and certainly nobody we knew did it.  If you took the plea that day, you got a great offer, less than what the case was really worth, as a bonus for taking responsibility early.  At the next big stage, it went up to the going rate for that offense and criminal history.  Once we were in hearings-and-trial mode, your offer went up again.  And once the first witness was sworn in at any hearing or trial, it was plea to the charge.

The point was not to penalize anyone for making me do any work.  I’ve always held that to be an unconscionable — if not unethical — position.  I was getting paid to do the work, and if it wasn’t being done on your case it was surely being done on someone else’s.  And believe it or not, I actually enjoyed it.  So no, it had nothing to do with whether I had to shift my lazy ass into gear.

The point was twofold: first, to reward being a stand-up guy — those willing to take the hit wound up getting a very sweet deal — and second, to provide an incentive for those who were inclined to plead anyway, to just get it over with sooner rather than later.

Of course, incentives only work if they’re consistently applied.  So I made a point of never backsliding.  The only way you’d get me to revise my offer was to give me some new facts, or a new way of looking at the facts — in which case I tried to do the right thing, whatever that happened to be (even including dismissal).

That was the key.  Consistency.  The very fact that I was consistent, meant what I said, and never backslid on my offers… that started to get around.  Towards the end of that first half of my time as an ADA, I couldn’t get a trial for love or money.  Everyone was pleading out early and often.  My favorite place to be was on trial, in front of a jury, but I was never tempted to be a jerk with my pleas to force a trial — as I was taught as a rookie, there’s nothing more despicable than trying to enhance one’s career at the expense of someone else’s life.

All that changed, however, when I joined the Rackets Bureau for the second half of my prosecutorial career.  All of a sudden, though I was running enormous cases solo, I somehow was no longer in charge of my own plea offers.

The shock hit during a fairly high-profile mob case.  I was meeting with a couple of the main defense lawyers, who I respected immensely, and who I knew had forgotten more than I’d ever known about criminal law.  So I resorted to frankness.  I was holding all the cards, so I might as well show them.  After detailing the rock-crusher case I’d built, I told them about my plea practice.  I said they should ask around, if they needed to confirm that I really would mean what I said in that schedule, so they should advise their clients accordingly.

They chuckled.

See, they knew (and I didn’t yet) that any plea offer was going to be dictated by my bureau chief, not me.  No matter what plea schedule I set, they told me, they knew from experience that my bureau chief would backslide on the eve of trial.  And he’d override me.  So they were going to advise their clients to go through the whole process, rolling the dice during the litigation phase, secure in the knowledge that the offer before trial would be just as good or better than the one I’d be offering on indictment.

I confronted my chief with this later on.  He was as honest and decent as they come, and he responded by nodding and saying “there’s some truth in that.”  And sure enough, that’s how it played out.

It was an unprincipled approach to plea bargaining, however.  It was unpredictable.  The incentives were exactly reversed.  The rational defense approach would be to plead as late in the game as possible, rather than as soon as possible — defeating pretty much the whole point of plea bargaining, if you asked me.

A prosecutor who makes “today only” offers is similarly unprincipled and inconsistent.  It’s a signal that the offer can be as good or better later on.  It gives me every reason to say “no, thanks.”  If we’re not picking a jury in five minutes, I’m probably going to see what further concessions I can get down the road.

So yeah… what Mark and Scott said.


*Just for you, Scott.  Today only.

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