I. The Prosecution’s Offer
The first step in making a plea offer is looking into Mario’s criminal background and the specific facts of the particular case. For instance, if Mario had and extensive criminal record including multiple DUI arrests of convictions, then the pleas offer would probably not include much of a choice other than pleading guilty and accepting a sentence of 364 days in jail, completion of a treatment program, and 2-3 years of supervised probation; or 2-3 year in prison. However, assuming that Mario does not have an extensive criminal record or DUI history; a realistic plea offer from the prosecution might include: (1) a plea of guilty to DUI and attempted possession of methamphetamine, (2) a sentence of 20 days in jail or 60 days of electronic home detention (EHD), (3) a license suspension for six months (4) completion of a drug and alcohol treatment program, and (5) supervised probation for the duration of the drug treatment program.
The justification for such a plea offer is as follows. First, possession of methamphetamine is general considered a felony which would mean, if plead to, a prison sentence. Accordingly, the charge must be lowered to a level that would fit a jail sentence (LaFave, 2000). This should be satisfied by an attempted possession charge (DOJ, n.d.). Second a sentence of 20 days or 60 days EHD seems reasonable based on the circumstances. Generally, a DUI requires 1-2 days in jail and, as mentioned another 18-19 days seems reasonable based on the fact the original charge could have led to at least 366 days in prison. Moreover, he has the choice to serve his sentence at home. A license suspension is almost always required with a conviction of a DUI, so there is little or no discretion on whether or not to include this in the plea offer (FindLaw, 2016). The drug and alcohol treatment is included on the basis that Mario obviously suffers from a substance abuse issue. Attending and completing a treatment program will therefore provide him with the tools and skills he needs to control his addiction so that he will not need to break the law again. Furthermore, a sentence without some form of treatment would most likely attract criticism from the court/judge and the public, who might believe that the prosecutor’s office has not done enough in the sentence to protect the community from a potential future threat of criminal activity. Lastly, the supervised probation for the duration of the treatment program is based on general findings that oftentimes people will not stay with a program if they are left to do it on their own. With probation, Mario is more likely to complete the program or if there are issues, he will hopefully be able to explain it to his probation officer who may be able to help him resolve the issues. In addition, probation allows the court to monitor Mario’s progress and act in a timely fashion if he fails to complete the sentence.
II. The Defense Counsel’s Counter-Offer
As with the prosecution’s determination of an offer, the counter-offer by the defense counsel also is influenced by Mario’s criminal history and the facts to the specific case. If Mario did indeed have an extensive criminal record, and the prosecution was only offering him jail or prison time; then the counter-offer would be quite simple, namely go to trial. The reason for this is that rather than just accept a jail/prison sentence, with a trial, there is the possibility that Mario may with or the jury would be hung. Even in the event that he lost the trial, he would be facing jail/prison time which was what he was going to be sentenced with under the original offer. Moreover, in preparation for and during the trial, Mario could enter into a treatment program so that if he lost, during sentencing, he could show the court why the sentence should be more lenient.
However, assuming that the plea offer was the same as described above and Mario did not have an extensive criminal record; and in consultation with Mario, the defense counsel’s counter offer should include: (1) agreement to plead to the DUI and attempted possession of methamphetamine, (2) credit for time served, if any, (3) 60 days of EHD, (4) the minimal number of days for a license suspension, and (5) completion of a drug and alcohol treatment program.
The justification for this counter offer is as follows. First, the possession of methamphetamines needs to be lowered to keep all the charges at the misdemeanor level, which results no imposition of prison time. Accordingly, that term of the prosecutor’s plea offer is accepted. Second, if Mario was arrested and booked into the jail for these charges, his lack of a record suggests that he is not criminally-minded and therefore does not need any more time in jail besides what he already served to deter him from future criminal acts. Third, 60 EHD seems reasonable considering what the sentence most likely would be had he plead to a straight possession charges. Fourth, is a license suspension is automatic, making it the least number of days is reasonable in the case that Mario needs to drive to work. In other words, nor have an ability to drive for a longer period may affect his ability to works which might lead him to breaking more crimes, such as driving without a license (Kaci. 1998). Lastly, completion of a treatment program is not only beneficial to Mario himself but it also reassures the court, prosecutor, and the public that Mario is taking the charges against him seriously and doing what he can to resolve, once and for all, the issues that led him to act criminally.
References
FindLaw (2016). DUI Laws. Retrieved from http://dui.findlaw.com/
Kaci, J.H. (1998). Criminal Procedure. Incline Village, NV: Copperhouse Publishing Company.
LaFave, Wayne, R. (2000). Criminal Law, 3rd ed. St. Paul, MN: West Group.
U.S. Department of Justice (DOJ). (n.d.). Aiding and abetting an attempted crime. Retrieved from https://www.justice.gov/usam/criminal-resource-manual-2481-aiding-and-abetting-attempted-crime
