Some Support for the Idea of Just Pleading Open.

October 10, 2017
By Hanging Out with Carl Gunn


  • A recent article by Alan Ellis suggests pleading open may be a better way to go in some cases.
  • A study described in the article showed sentences were actually lower with open pleas in some types of cases, like fraud, though they were higher in other types of cases, like tax cases.
  • So you should keep the open plea option in mind, especially with the less flexible plea bargaining policies of this new DOJ and new “not my president.”



Way back early in the history of this blog, I put up a post suggesting we not just kneejerk sign plea agreements in every case in which our client wants to plead guilty, but consider entering open pleas, to avoid giving up the things they make us give up in plea agreements.  (See “Why Do We Sign Plea Agreements?  Or Who Needs the Government Anyway?” in the August 2012 link at the right.)  This idea was brought back to my mind a few months back when I got a Law Offices of Alan Ellis e-mail with several articles his office had put out, including one titled, “Plea Bargained vs. Open Pleas: What the Data Reveal.”  The article is published in the March 2017 issue of the “Westlaw Journal” and can be found on Westlaw at 2017 WL 1039456.  For those of you without the Westlaw access, I’d also be glad to forward you the e-mail I got which contains the article.  But I thought I’d share some of what I found interesting in the article.

First, the bottom line conclusion, appearing at the beginning of the article (which I guess means it isn’t really the “bottom” line), is: “The results [of an expert analysis of raw sentencing data published by the Sentencing Commission] are rather surprising, and we suggest there are increasing strategic reasons for defendants to consider pleading open.”  The article then notes the disadvantages of signing a plea agreement, some of which I noted in my post back in 2012.  Those include (1) complete or partial waiver of the right to appeal which many plea agreements require; (2) in some districts, waiver of the right to request a future sentence reduction based on retroactive guideline amendments; and (3) waiver of the right to litigate whatever guidelines factors the plea agreement requires the defendant to agree to – and, in some instances, waiver of the right to argue for departures and/or variances.

The article does recognize that pleading open means there’s no agreed-upon sentencing calculation to provide protection on the upside and there won’t be dismissal of any charges.  (Query, however, whether the government will always go to trial on the remaining charges if a defendant pleads guilty to some.)  Still, the article notes, multiple counts often get grouped together, and, related to this point, dismissal of counts is often meaningless because the underlying conduct will get considered as relevant conduct anyway.

The article then goes on to discuss what the statistics show about sentences in open plea cases, which were a “rather surprisingly high” one-fourth of cases, compared to sentences in plea agreement cases.  The article summarized what the statistics show as follows:

[T]here has been an overall trend since Booker of defendants increasingly entering into open pleas (although the rate varies by offense type).
What is particularly interesting is that, overall, those who pleaded open (and thereby preserved their right to challenge all relevant conduct in terms of sentencing factors) have received lower sentences on average.
In fact, the trend has been that open pleas result in increasingly lower average sentences while pleas under agreements result in increasingly higher sentences.

The article did acknowledge this varied by offense type, giving the two examples of fraud cases – in which there has been a consistent trend of increasingly lower sentences in open plea cases – and tax cases – in which the trend has been the opposite.

The article then concludes with the following common sense observation:

[A]t least in some cases, pleading open can be advantageous, at least statistically speaking.  This will come down to how successful plea negotiations are with the government and the merits of any challenges to relevant conduct or appellate issues.

So don’t forget to keep the open plea option in mind.  An open plea does give up something in terms of certainty, but sometimes the certainty it gives up is a bad certainty more than good certainty.  And that’s all the more likely given the new DOJ policies discussed in another post a couple of months back (see “Those Were the Days. . . .  Still, There Might Be a Bone They’re Throwing Us . . .” in the July 2017 link at the right).