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 (more…)