I can’t tell you how many times I’ve heard defendants (but not their attorneys) say, “should I take the first plea offer?”
“Never take the first plea offer” is a myth that is often repeated by inmates talking at the jail. I’m not saying you should take the first plea offer. Or the second, third, or fourth plea offer if there are any more.
I am going to explain why the answer depends on each person’s individual case – maybe you should take the first plea offer. Maybe you should go to trial and hope that an acceptable plea offer is made before the jury is sworn. Or, maybe there are no acceptable plea offers and your case needs to go to trial if it is not dismissed.
I’m saying that there is no general rule as to whether you should take the first plea offer or any plea offer at all. If this is a question that you or someone you know is struggling with, read on…
Should I Take the First Plea Offer?
In Horry County, SC, there is no “first” plea offer. When you receive a plea offer, it might be the first and last plea offer. Or it might not…
Ordinarily, there is a time limit on acceptance of a plea offer – if you receive a plea offer, it sucks, and you do not accept it, it may be withdrawn, and we cannot force your prosecutor to make the same plea offer again.
On the other hand, if the plea offer is patently unfair, further reflection and mitigation provided by your attorney might make your prosecutor change their mind and make a better offer before your case goes to trial.
On the third hand, no plea offer may be acceptable depending on the facts of your case – if this is the case, the prosecutor needs to dismiss your charges or put your case on the trial roster.
When Do Prosecutors Make a Plea Offer?
In the Fifteenth Circuit – Horry and Georgetown Counties – your prosecutor will make a plea offer if your case is in General Sessions Court (this is usually true in the lower courts as well).
That doesn’t mean they will make a meaningful or reasonable plea offer. Your prosecutor might send on over a plea offer without taking the time to evaluate the strength of their case or review the mitigation provided by your attorney.
Other times, your “plea offer” might be to plead guilty to your charges without a recommendation. Which is not really a plea offer, but the prosecutor is letting you know that they are not interested in helping you and/or they want a trial.
What Happens if I Don’t Take the First Plea Offer?
If your “first plea offer” is a non-plea offer or an unreasonable plea offer, you should probably reject it – but – you must reject it with the understanding that you are going to trial.
You can’t reject a plea offer, wait until after the deadline to accept it passes, and then demand the same or a better plea offer – at this point, you are going to trial, or you may have to plead “straight up” to your charges. Maybe a better plea offer or even a dismissal happens before trial, but, if it does not, you are going to trial…
And that’s okay – it might be terrifying, and it might end badly, but it is how the system works.
When Should I Take a Plea Offer in a Criminal Case?
If you are guilty, if they can prove that you are guilty, and if you can live with the terms of the plea offer, you should take the plea offer.
If you are guilty, they can prove that you are guilty, and you know that the consequences will be more severe after a trial, you are obviously faced with a difficult choice – roll the dice, hoping that your attorney can pull off a miracle, or bite the bullet and take the plea offer.
When should you not take a plea offer?
- When you are not guilty (with very few exceptions – you can enter an Alford plea while maintaining your innocence if it is in your best interests);
- When the government cannot prove that you are guilty;
- When the penalty following a trial would be the same or less than the prosecutor’s recommendation in a plea offer (sounds ridiculous but it happens); or
- When you don’t want to plead guilty, regardless of consequence.
That last one is the kicker – no matter how bad your case looks and no matter how severe the penalty may be following trial, whether you plead guilty or go to trial is always your choice.
Your attorney may advise you to plead guilty, and they might even lean on you a bit if they think they know you are making the wrong decision. But, it’s your decision. Always.
Does the Prosecutor Have to Make a Plea Offer?
In the Fifteenth Circuit (Horry and Georgetown Counties), your prosecutor will most likely make a plea offer because that’s their office policy. It may not be a meaningful or reasonable plea offer, but they will send you a piece of paper that says, “plead guilty to x, y, z and we will recommend a, b, and c.”
Of course, x, y, z might be exactly what you are charged with and a, b, c might be “nothing.”
The law does not require your prosecutor to make a plea offer – if your prosecutor chooses, they can require you to plead guilty to what you are charged with or go to trial.
So, “should I take the first plea offer?” is kind of a nonsensical question. It depends on your case, your prosecutor, your attorney, your goals, and whether you are ready and willing to take your case to trial if the prosecutor doesn’t blink.
Criminal Defense Lawyer in Myrtle Beach, SC
Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.
Do not accept any plea offer in any criminal case before your attorney has investigated your case, prepared your case for a possible trial, and discussed the pros and cons of pleading guilty versus a jury trial.
Call now at (843) 492-5449 or send an email to speak with a SC criminal defense attorney in Myrtle Beach today.