William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

June 17, 2005

Austin criminal attorney talks about plea negotiations.

Have you ever bought a car? If you have, you already have a pretty good understanding of the basics of plea negotiations.

If you stand accused of a crime, and you want to resolve that case without a trial, then chances are you will negotiate a plea. More precisely, your lawyer will negotiate, but he can only negotiate with your authority.

To fit with the analogy of buying a car, you would be the “buyer,” even though you don’t really want to buy anything other than a conclusion of the case that you can live with. The prosecutor is the “seller.”

Negotiations begin with the seller’s first offer. The car seller does not say to the buyer “How much do you want to pay me for this car?” Rather, the seller usually puts a sign on the car and says he wants a certain amount of money. That’s when the buyer makes a counteroffer, and the seller makes his counteroffer, and so on.

For example, suppose the seller wants $20,000 for a pickup truck. You want the pickup truck, but you don’t want to pay $20,000 for it—you want to pay as little money as you possibly can. So you “lowball” your counteroffer to buy that truck. For example, you might counteroffer at $10,000, and mention that it looks like the fuel filter looks like it’s original from the factory and very dirty.

Now, if that seller accepted your counteroffer of $10,000, a savvy buyer would be a little disappointed. Why? Because the savvy buyer knows that if the seller accepts the very first counteroffer, then the buyer probably could have bought the pickup truck for less money.

On the other hand, the seller might signal his willingness to negotiate without giving up a whole lot, and make a counteroffer of $19,500. Or, the seller might have other pressures on him to make him want to sell the truck, other than a simple desire to get as much money for it as possible. So the seller might counteroffer instead at $15,000. This process can go back-and-forth many times until the parties meet somewhere in the middle.

Now let’s fit the car buying analogy into plea negotiations. Let’s pretend you are a college student who has never been arrested before and that you’re accused of possessing about 4.5 ounces of marijuana. You’ve been arrested and you’ve bonded out of jail. You are charged with a State Jail Felony. Because this is your first felony, and your first felony drug arrest, you will automatically receive probation. (Non-drug / non-State Jail Felony offenses don’t get the “automatic probation” treatment.) So the prosecutor (the “seller") makes you an offer for probation, something like an offer for 2 years in a State Jail Facility, all of which would be probated for 4 or 5 years.

But your lawyer probably will want to do better than the automatic probation that a Chimpanzee in a Suit could get you. He will counter offer with a one year deferred adjudication probation to a Class A Misdemeanor. (Please see the answer to question 16

Commonly Asked Criminal Law Questions

for an explanation of “deferred adjudication.") That is “lowballing,” like the $10,000 offer to buy the pick up truck I mentioned above. He’ll want to give the prosecutor reasons to reduce the charge to a misdemeanor. He’ll point out that you are only about ½ of an ounce over the dividing line between a Class A Misdemeanor and a State Jail Felony. He’ll look for problems with how the police stopped and searched you. He’ll point out that you are a college student with your whole life ahead of you and no other criminal history.

At least, that’s what I would do.

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William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

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