Boulder County Bar Association

The overwhelming majority of criminal cases settle through plea negotiation which is also referred to as plea bargaining. Settlement discussions are provided for by Colorado statutes, and are a practical necessity given the number of cases that are filed compared to the ability of the court system to handle trials. While plea bargaining is the target of frequent criticism, the practice has been an integral part of the criminal justice system for many years. More than 95 percent of all criminal cases in Colorado are resolved without trial. Prosecutors often offer lesser sentences or reduced charges to defendants who plead guilty on the premise that doing so will achieve a fair and just result more quickly and efficiently resolving the matter through trial. Another basis for settling a case through negotiation is the idea that a defendant who pleads out is taking responsibility for her actions related to the criminal charge.

Plea bargains in Colorado are sanctioned by statute and rule. Colorado recognizes plea bargaining as a valuable tool in expediting the administration of criminal justice. However, a defendant does not have a constitutional right to a plea bargain. Plea negotiations can occur at any stage of the proceedings. Sometimes cases can be resolved as quickly as the day charges are filed, sometimes they are not resolved until the morning of trial. Pre-trial conferences and dispositional hearings are two proceedings at which plea negotiation is explicitly encouraged but, as a practical matter, plea discussions take place at virtually all hearings and at many points in between those hearings.

The topics that are usually often considered by both sides in plea bargaining include: absence or existence of a prior criminal record; whether the offense was a crime against property or a person; if the offense was a crime against a person, who the victim feels about the case; if the offense is a property crime, whether the property was recovered; the possibility of restitution; the willingness of the defendant to undergo counseling or treatment; the relative weaknesses and strengths of the available and admissible proof in the case; the likely outcome at trial; the likelihood of rehabilitation or recidivism; any collateral effects of the plea upon the defendant; whether the defendant will cooperate with authorities in other criminal investigations; the viability of any affirmative defenses that might be available; the defendant's degree of involvement in the crime; and the probable sentence upon conviction.

The legislature has put some restrictions on a prosecutor's ability to settle a case. For example, a charge of DUI cannot be reduced to a charge that is not alcohol related unless the prosecutor does not even have a prima facie case on the original charge, that is, unless the prosecutor's case is so weak that even if one looks at the facts in the light most favorable to the prosecution, the prosecution simply has no chance of convincing a jury of guilt. The same is generally true of domestic violence cases.

With these few exceptions, prosecutors have great discretion in offering to settle cases. Prosecutors can offer to reduce or dismiss charges to more accurately reflect the actual conduct of the defendant and to lessen the possible sentence faced by the defendant. A prosecutor might agree to recommend a particular sentence, or to not oppose a particular sentence, in exchange for the defendant agreeing to plead guilty to one or more charges. A prosecutor might agree to probation, with a wide range of conditions, if the prosecutor deems the defendant to be the sort of person who is amenable to supervision and who does not need to be incarcerated.

Prosecutors may also agree to a deferred prosecution, that is an agreement to stop prosecuting the case for some period of time during which the defendant agrees to stay out of trouble and meet other conditions such as the payment of restitution or counseling. If the defendant meets the conditions, the case is dismissed; if the defendant does not, the prosecution of the case resumes and the defendant either reaches a new agreement or proceeds to trial.

Another common method of settling criminal cases is through a deferred judgment and sentence. Under this procedure, the defendant pleads guilty to a charge, but the judge does not officially enter a judgment of conviction against the defendant. The defendant is ordered to stay out of trouble and meet other conditions, just as with a deferred prosecution. If the defendant succeeds, the guilty plea is withdrawn and the case is dismissed. If the defendant fails to meet the conditions, a judgment of conviction is entered on the previously tendered guilty plea, and the defendant is sentenced to whatever sentence the trial court deems appropriate.