Thoughts from the command center: Moving back to plea bargaining

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By Joseph J. Marchese

Published: 04/09/2007

Editor's Note: In our new column “Thoughts from the Command Center” guest writer Joseph J. Marchese uses experiences from his extensive career in New York State reentry programs to offer thought provoking ideas about reentry and how it should affect the plea bargaining process.

In the last year there have been more than 26,000 offenders from New York State prisons returning to communities. While communities are more comfortable with the term “parolee,” there needs to be a realization that in most cases these formerly incarcerated persons were and are now again citizens of the community to which they are returning.

While most reentry systems across the nation focus on starting reentry initiatives as soon as offenders begin their incarceration, there is something to be said for moving the process still further back to the plea bargaining stage, where interactions between the district attorney, defense counsel and judge take place.

We all know plea bargaining is an essential part of the criminal justice system, but does it serve public safety or in any way consider offender reentry? How does a bargained term of 3-5 years serve public safety any better than the original proposed sentence of 7- 10 years? We all believe that plea bargaining saves the taxpayers a ton of money, but does it really? When we consider the costs and impact to public safety when a releasee commits new crimes, are there any real savings or are there instead greater costs?

Many will agree that the main intention of the sentence is punishment or at least incapacitation; however the overriding concern should always be public safety. Thus, the goal of moving reentry initiatives into the plea bargaining phase would be to give defendants an opportunity to demonstrate to the DA and the judge how public safety can still be served, or better served, by agreeing to a reduced sentence.

In essence, the defendant would deliver a reentry plan to the court that would demonstrate how he/she would effectively use their time while incarcerated and/or under community supervision to prepare and execute a plan for leading a law-abiding lifestyle.

In trial cases, convicted defendants have an opportunity to appeal to the judge for leniency. Such pleas are usually based on remorse, extenuating circumstances or the defendant's good character before the crime. Certainly these factors are relevant to judges as they contemplate a sentence.

However, these factors seldom tell us the defendant's plan to correct his/her behavior in preparation for and during his/her reentry into the community. With most prison sentences being about two years long, a defendant's reentry plan needs to begin as soon as possible. When one considers that most offenders are in need of treatment for issues like chemical dependency, anger management and the most significant intervention of all, cognitive restructuring, it is important to line up proper correctional programs for the offender and then provide a continuum of such programs as the offender reenters the community.

In addition, critical elements of reentry planning for such things as housing, medical and mental heath care need to begin as soon as possible to avoid needless delays caused by program eligibility rules. Therefore, when the focus is on public safety, the main goal of plea bargaining should require a reentry plan that begins at the earliest possible opportunity.

It is also important to consider the message that is sent to the offender at sentencing about change. When asked why they are in jail most criminal thinkers will say “'cause I got caught.” There is really no cognitive link between what they did wrong and the consequences. We can extend that thought to the plea bargaining and sentencing process, and as offenders will tell you “Every day off the sentence is one less day in prison.”

Instead of “If I fix myself up - I can get out early and stay out.” The term “bargaining” implies that someone is getting a “good deal” in exchange for something else. Is that the message we really want to send at plea bargaining? Shouldn't it be that the most important thing you can do when incarcerated is to work to positively change your behavior?

We all know that some offenders will agree to do almost anything to reduce their sentence. In such cases, the plea bargaining rarely sends any positive message to them beyond that of a judge chastising them for the horrible behavior and ending with “I hope you have learned from your mistakes.”

Our criminal justice system needs to make it clear that the major intent of the prison sentence is providing opportunity for positive change for those inclined to do so. We need to let the offender know that regardless of their state of motivation at the time of sentencing, we are still going to hold them accountable for their proposed change plan. This process at the very least will get the defendants thinking about what they need to do program wise to get out.

Even if the defendant is only trying to convince the judge or DA to lighten the sentence, it can still be considered the beginning of a cognitive change intervention that demonstrates that developing a believable plan for a law abiding life style has something to do with their freedom. This sends a message beyond punishment, (which, by the way, criminal thinkers seldom learn from) and instead says that planning and working on behavioral change is essential to an earlier release.

A DA's initial reaction might be to ask “What if they don't adhere to the plan?” The answer is simple, and centered on accountability and cognitive behavioral change.

When a plan is not adhered to, accountability can be addressed at numerous levels. The first is with the corrections counselor at the prison; the second with the parole board; the third with the institutional parole officer; and the fourth is with the parole officer in the field.
Ultimately, accountability will come in to play if the offender re-offends and is prosecuted again. The offender's failure to comply with his/her reentry plan can then be presented to the judge when a plea bargain is again considered or during the sentencing. Therefore, there is accountability with the possibility of sanctions throughout the process and a system that stresses that failing to adhere to a reentry plan has continuous and progressive ramifications, (i.e. no plea bargaining and higher numbers in the sentencing process.)
Many of us will agree that punishment alone seldom teaches offenders the lessons they need to live law abiding lifestyles. By focusing on reentry during the plea bargaining and sentencing stages, we broaden an offender's options to lead a law abiding lifestyle. Even if offenders wind up with a shorter plea bargained sentence, as long as their plan is feasible for restructuring their lives (real or contrived) it does get them thinking that there may be a connection between changing their lifestyle and freedom.

A plea bargaining process that requires an offender to work with his or her lawyer, in conjunction with corrections and community reentry services, to develop a reentry plan is a crucial link to improving the success of reentering offenders. County governments that are serious about increasing public safety need to consider starting and/or maintaining the reentry process that begins with plea bargaining and sentencing.

Joseph J. Marchese was Deputy Director of Criminal Justice and Director of the New York State Prisoner Reentry Project at the New York State Division of Criminal Justice Services before retiring. For more information, contact him at jjmtrainer@aol.com.

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