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Should I Take a Plea Bargain for a Sex Crime?
Posted on July 1, 2015 by Law Office of Brett A Podolsky
A defendant who is charged with a sex crime in Texas may be facing some serious legal penalties. These penalties can include jail time, fines and sex offender registration. One way to avoid the full extent of these possible penalties is to accept a plea bargain from the prosecution.
A plea bargain is an agreement between the defense and the prosecution. In many cases, the prosecution will be the district attorney. In a plea bargain, the district attorney may offer a deal to the defendant after charges have been filed and before a trial takes place.
In most cases, the plea bargain will require the defendant to enter a guilty plea in court. However, the defendant may only have to plead guilty to a lesser charge than the crime for which he or she was originally charged. Alternatively, if the defendant is charged on multiple counts, he or she may only have to plead guilty to one or a few of the total charges.
Benefits of Plea Bargains
There are several advantages for a defendant who chooses to accept a plea bargain for sexually based offenses. Some of these benefits can include:
- Reduced jail time
- Reduced fines
- Conviction on a misdemeanor charge rather than a felony charge
- Probation instead of jail time
When it comes to sexual crimes, plea bargaining is a possibility. However, a plea bargain for a sex crime may work differently when compared to other types of offenses.
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Plea Bargains and Sex Offender Registration
Mandatory sex offender registration is one of the most serious consequences for a sex crime. This mandatory registration may be valid for the remainder of the defendant’s life or for a period of several years. For defendants who receive prison time, the registration can activate once they are released from incarceration.
Registration can require a person to:
Obviously, these are very serious consequences. A person accused of a sexual offense may wonder if a plea bargain can help them avoid this mandatory registration.
In reality, this may not be possible. A person who admits guilt to a sex crime for which registration is required must register as a sex offender. In general, the only way to avoid sex offender registration is accept a plea bargain for a lesser charge for which registration is not a requirement.
For example, if a defendant is charged with a crime for which registration is a requirement but accepts a plea bargain for a charge that does not require registration, that defendant could potentially avoid registration. He or she may still have to face incarceration, probation and fines but it may be worth it to avoid the stigma of sex offender registration.
Should I Take A Plea Bargain?
This is not an easy question to answer. Every case involving sex crime charges will be different. In some cases, a defendant may stand to gather a lot of advantages by accepting a plea bargain.
However, a plea bargain requires a total admission of guilt and pleading guilty to any sex crime can have serious consequences. There can be an element of public shame and humiliation that may be just as bad as jail time.
The best strategy for a defendant in this situation is to consult with an experienced attorney. An attorney may be able to examine the facts of the case and the charges that have been filed and make a recommendation. In addition, an attorney may be able to negotiate with the court for a new plea bargain that is more favorable to the defendant.
The average person will not have the knowledge or experience to negotiate with the court on their own and public defenders may be overworked or inexperienced. Hiring a lawyer as soon as sex crime charges are filed is a great first step towards building a strong legal defense that may secure a favorable plea bargain.
If you’ve been accused of a sex crime, it’s crucial to contact an experienced attorney. Brett A. Podolsky will fight to protect your rights. Call 713-227-0087 or email for a confidential consultation today!
https://brettpodolsky.com/sex-crimes/sho...-sex-crime
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6abc Investigates: Plea deals for accused sex offenders in Philadelphia
Click to watch the report from Action News
November 18, 2013 8:44:23 PM PST
Action News
November 18, 2013 --
Some say there are unacceptable plea deals being made with accused sex offenders in Philadelphia that are allowing the potential felons back into the community without being registered as sex offenders.
These accused sex offenders could live in your neighborhood, next to a school, or a swimming pool, and you'd never know it.
Now, one State Representative in Pennsylvania is expressing his outrage that Philadelphia District Attorney's Office is making plea deals that he warns could make Philadelphia less safe.
John Mahon, Joseph Reif and Andrew Wilson have a secret that families who live and work around them may never have known. Police say these three men all admitted to downloading and viewing extremely explicit sexual videos and pictures of young children.
"These are very disturbing images. Kids being forced to endure all types of sexual acts. And deplorable, deplorable images... I think it's outrageous," former Montgomery County sex crimes prosecutor and State Representative Todd Stephens told Action News.
He says it is exactly these kinds of offenders who should be flagged, and prevented from working with our kids by putting them on the sex offender registry.
Authorities say John Mahon confessed to investigators the youngest person in the nearly 2 dozen pornographic images he downloaded was only 8 years old. State Police told Action News that Mahon admitted having the images in his possession on his computer.
State police arrested Joseph Reif after they say he downloaded a sexually explicit video involving a 5-year-old child. They then found 18 illegal videos on his computer at his Port Richmond home. Authorities told Action News he was charged with 4 different felonies involving possession of child pornography.
Investigators nabbed Andrew Wilson in an undercover sting after they say he downloaded a video of a girl between the ages of 5 and 8 involved in an illegal sex act an adult man. In addition, police say, investigators found 67 images depicting child sexual acts taking place that he "readily" admitted to investigators that the images were his.
But you won't find Wilson, Reif or Mahon on the Pennsylvania Sex Offender Registry.
"After reading the descriptions of what they've done," Rep. Stephens says, "it's pretty clear to me that these are folks that the public should be aware of. I certainly wouldn't want them living in my neighborhood around my son."
But Action News has discovered Philadelphia District Attorney Seth Williams has allowed all 3 men to plea down to lesser crimes like criminal use of a computer. That charge doesn't require sex offender registration and wouldn't show up as a sex crime in a background check.
In fact, when Action News went to Wilson's home, there was a disturbing note on the door soliciting kids to go inside the home of this accused sex offender. Action News investigative reporter Wendy Saltzman spoke with the woman who answered the door:
Wendy: "Now are you running a daycare out of there?
Mother: "I'm not running anything."
Wendy: "Because there is a sign on there."
Mother: "Oh, I got a little candy stand, in the summertime. I did water ices for the neighborhood and chips and cakes and stuff."
Wilson's mother defended her son and his presence around unsuspecting children and that he's not on the sex offender registry: "I know my son, I raised my son and he did not do this."
When Action News found Joseph Reif, he didn't want to speak with us about his plea deal:
Wendy: "I wanted to chat with you about the Child Pornography Charges."
Reif: "No, I don't want to talk about it."
Wendy: "We wanted to see what happened with that case."
Mahon didn't answer the buzzer at his Center City home.
District Attorney Seth Williams also refused to speak with us on camera after numerous requests. Instead, his spokesperson issued a statement saying in part:
"Working hand in hand with sex offender probation officers, we have found that supervision to be more effective. The only requirement for being on the Megan's Law registry is the offender must report to the State Police any new address and verify their address every 3 or 6 months... While it is useful that the public can go on the website to find registrants in their neighborhood, registration does not require sex offender treatment." (You can read the entire correspondence at the end of this article or by following this link now)
But after serving as a sex crimes prosecutor for 10 years, Representative Stephens isn't buying that alternative.
"I haven't heard anyone say that they are willing to stand up, sign their name on the dotted line and swear to me that an individual is going to be rehabilitated," Stephens said. "And I'm not willing to risk our kids." A potential sentence for these offenders could have included both registration and treatment, but the district attorney's office says defense attorneys are more likely to fight registration and force a trial because of the stigma of being on the sex offender registry. So it's easier for them to get a plea if they lessen the charges.
Action News received the following response and answers to follow-up questions while gathering information for this report:
There is no blanket policy for any case that this office prosecutes, and your assertions about "concerns that have been brought to your attention about Megan's Law charges being plead down by the Philadelphia District Attorney's Office" are ridiculous. Every case prosecuted in this office is prosecuted on its own merits, every case is different.
Here is information on the cases you mentioned, which involved first time offenders with no prior arrests or convictions, who were found with pornography on their computers.
1. Joseph Reif - waived his preliminary hearing in exchange for a plea to Criminal Use of Communication Facility and 3 years sex offender probation, $1000 fine, had to forfeit his computer
2. John Mahon - waived his preliminary hearing, pled guilty to Criminal Use of Communication Facility, 6 years sex offender probation, $1500 fine, had to forfeit computers and electronics.
3. Andrew Wilson pled guilty in Municipal Court to possession of instrument of crime and also received sex offender probation.
Each of the defendants was placed on Sex Offender Unit Probation which is far more effective supervision than placement on Megan's Law. Under such probation, each defendant is supervised by a probation officer who has special training in supervising sex offenders. Conditions of such probation are stringent:
Defendant must receive an evaluation at the Joseph J. Peters Institute (link added by Action News) and then undergo sex offender treatment there, usually for a lengthy period. (The Joseph J Peters Institute is one of the top treatment and control centers for sex offenders on the East Coast). Defendants are subject to lie detector tests to confirm they are no longer offending.
Defendant's computer use is monitored in real time by probation officers so they see whatever they are doing
Defendants cannot possess any type of pornography
Defendant's home and computers are subject to search at any time without a warrant.
Defendant cannot be in the presence of any minors without a responsible adult being present and defendant cannot work or volunteer for any position that involves regular contact with minors.
Action News reporters and producers had several follow-up questions, which were answered in the following e-mail correspondence:
QUESTION: How has the DA's office determined that Sex offender probation is "far more effective than placement on Megan's Law"
ANSWER: Working hand in hand with sex offender probation officers, we have found that supervision to be more effective. The only requirement for being on the Megan's Law registry is the offender must report to the State Police any new address and verify their address every 3 or 6 months, as well as the car they drive and other personal information. While it is useful that the public can go on the website to find registrants in their neighborhood, registration does not require sex offender treatment, polygraphs, restrictions on computer use and contact with minors. Citizens can go online to see if someone in their area is on Megan's law but there is no intervention and supervision of the actual offenders to ensure they do not reoffend. Frankly, the burden should be on the offender to comply with the law rather than requiring each citizen to check the website and then somehow protect themselves. Rather than counting on every citizen to each check the website and then protect themselves, we feel it is more productive to directly supervise and control the offender to prevent him from reoffending. A person can be on megan's law (sic) but still be hosting parties in their home for kids. If they are on sex offender probation and do that, they will go directly to prison. Again an offender on sex offender probation must do the following things and has a specially trained probation officer making sure they comply or else they go to prison:
Get a sex offender evaluation and risk assessment by the Joseph J. Peters Institute (JPPI)
Attend sex offender treatment at JPPI
Be subject to polygraph examinations to confirm they are not re-offending
Have all their computer activity monitored in real time by outside officials
Not have unsupervised contact with children under age 18 or work with children
Submit to regular drug testing
Not possess pornography of any type
Not travel outside of Philadelphia, Bucks, Montgomery, Chester or Delaware county without prior permission from their probation officers
Not stay overnight outside that area without the permission of their probation officer and the court
The sex offender officers work in coordination with experts from the Joseph J. Peters Institute to employ best practices to prevent recidivism by any sex offenders and to respond promptly to any violations.
QUESTION: Can't a person on this "stringent" Sex Offender Probation still be registered with Megan's Law?
ANSWER: Yes. However, defense attorneys will often take a case to trial rather than place their client on Megan's Law because of the public stigma and the fact that it may devastate their client's ability to find employment. Forgoing Megan's Law registration to obtain the certainty of a conviction produced by a plea along with sex offender probation is a consideration for us in appropriate cases.
QUESTION: One of the provisions of Megan's Law allows for the public to be notified about the whereabouts of sex offenders. This is most commonly done through internet access to a state's Megan's Law database. Is there any public notification taking place with these three defendants (Reif, Mahon and Wilson)?
ANSWER: No, those three defendants are not on Megan's Law which means citizens visiting the state ML website would not see them. Sex Offender probation officers may notify family members and others living with the defendant that they may not be around children and may require that the offender move out but there is no public listing of persons on sex offender probation.
To obtain the certainty of a conviction with a plea, where a trial could end up in suppression of evidence or an acquittal, our office may at times agree to forego ML registration in order to convince a defendant to take responsibility and be placed on sex offender probation which better protects the community. Of course, we could take every case to trial and offer no concessions for pleas but that would increase the chance that the offender would escape with no consequences. The DA's Family Violence & Sexual Assault Unit (link added by Action News) is recognized nationally as one of the most aggressive units in the country in prosecuting sexual offenders, as evidenced by the Pentagon's recent visit to gain our advice in how to improve their prosecution of rape cases in the military. We have made a careful calculation in each of these cases that certainty of a conviction and intensive sex offender probation was worth forgoing ML registration.
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The aim of this study was to test the hypothesis that South Carolina’s sex offender registration and notification policy influenced juvenile sex offense case plea bargains. Two types of plea bargains were examined: initial sex offense charges amended to nonsex offense charges and amended to lower severity charges. Comparison analyses were conducted with juvenile assault and robbery offense cases. Archival data on cases involving 19,215 male youth charged with sex, assault, and/or robbery offenses between 1990 and 2004 informed analyses. Of these youth, 2,991 were charged with one or more sex offense, 16,091 were charged with one or more assault offense, and 2,036 were charged with at one or more robbery offense. Generalized estimating equations (GEE) were used to model changes in the probabilities of plea bargain outcomes across three time intervals: before policy implementation (1990 to 1994), after initial policy implementation (1995 to 1998), and after implementation of a revised policy that included online registration requirements (1999 to 2004). Results indicate significant increases in the probability of plea bargains for sex offense cases across subsequent time periods, supporting the hypothesis that South Carolina’s initial and revised registration and notification policies were associated with significant increases the likelihood of plea bargains to different types of charges and to lower severity charges. Results were either nonsignificant or of much lower magnitude for the comparison assault and robbery analyses. Suggestions for revising South Carolina and national registration and notification policies are discussed.
http://journals.sagepub.com/doi/abs/10.1...3212455667
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For immediate release: Aug. 19, 2010
DAs URGED TO REQUIRE DNA SAMPLE IN EVERY PLEA BARGAIN
Acting Commissioner Byrne says Albany gridlock endangering public
Acting Commissioner Sean M. Byrne of the State Division of Criminal Justice Services is urging prosecutors statewide to require submission of a DNA sample as a condition of all misdemeanor plea bargains.
“It is obvious that there is broad support in the Legislature for expanding the DNA Databank – as there should be since doing so will save lives and exonerate innocent people,” Acting Commissioner Byrne said. “It is equally obvious the Legislature’s inability to come to terms on a specific bill is jeopardizing the public safety.”
In a letter sent earlier this week to New York State’s 62 district attorneys, Acting Commissioner Byrne “strongly encourage[d]” prosecutors to require a DNA sample as a condition of all plea bargains. He noted that State law permits such collection, in addition to allowing DNA to be collected as a condition of parole or probation.
Acting Commissioner Byrne said the “stop gap remedy to Albany gridlock” would help close a “gaping and dangerous loophole” that allows 54 percent of the individuals convicted of Penal Law crimes to avoid providing a DNA sample.
Governor David A. Paterson has submitted legislation that would require a DNA specimen from everyone convicted of a Penal Law felony or misdemeanor. But with competing bills that contain unrelated criminal justice initiatives, the Legislature has not taken action on all-crimes DNA, despite the fact that many lawmakers have embraced the concept.
“It is ultimately the role of Legislature to enact a bill to expand the databank and provide New Yorkers with the protection and security they need and deserve, and I respect that role,” Acting Commissioner Byrne said. “Until then, our district attorneys can expand the databank and enhance public safety by simply conditioning every misdemeanor plea bargain on submission of a DNA sample.”
Acting Commissioner Byrne said a case in Manhattan just two days ago illustrates how DNA collected for one offense can solve an unrelated crime.
“On Tuesday, a limousine driver who recently provided a DNA sample after pleading guilty to arson was linked to a rape that occurred a decade earlier,” Acting Commissioner Byrne said. “Fortunately, the suspect in the Manhattan case was required to submit DNA. However, if he had committed any of the hundreds of offenses that do not require a DNA sample, the 2000 rape would still be a ‘cold case.’”
New York’s DNA Databank began limited operations in 1996, when individuals convicted of homicide and certain sex-related crimes were required to submit DNA samples.
The number of DNA-eligible crimes has been expanded three times since then (1999, 2004 and 2006) but at least 200 crimes, including misdemeanor drug possession, aggravated harassment, unlawfully dealing with a child and an arson count, are still not DNA-eligible. In addition, in at least 100 attempts to commit felonies – such as attempted riot, attempted terrorism, attempted arson – are not currently DNA-eligible offenses.
Under this initiative, prosecutors would require as a condition of a plea bargain a DNA sample whenever someone pleads guilty to any crime that does not currently require submission of DNA. Last year, more than 110,000 misdemeanor offenses that did not require a DNA sample were disposed of by a guilty plea.
Acting Commissioner Byrne said DCJS is aware of numerous cases where a murder, rape or other violent crime would have been solved or prevented if the perpetrator had been required to submit DNA for a relatively minor offense. As examples, he cited the cases of Francisco Acevedo in Yonkers and Raymon McGill in Albany.
Earlier this year, Acevedo was required to provide a DNA sample as a condition of parole for a drunken driving conviction, even though DWI is not a DNA-qualifying offense. That sample linked him to the murders of three women in Yonkers dating back to 1989.
McGill was convicted twice of minor crimes – petit larceny in 1999 and drug possession in 2003 – that did not require collection of DNA. When he was finally convicted of a DNA-qualifying offense, attempted robbery in 2005, he was linked to the rape of an 85-year-old woman in January 2000, the murder of a 50-year-old woman in March 2000, and a second murder, of a 68-year-old man in January 2004.
“Had McGill’s DNA been collected as a result of the petit larceny conviction, his connection to the January 2000 rape could have been discovered before the March 2000 murder, and that crime – as well as the second murder and attempted robbery – could have been prevented,” Acting Commissioner Byrne said. “And today, the misdemeanor drug possession charge – of which McGill was convicted three months before he killed again – remains a DNA ineligible offense.”
Acting Commissioner Byrne first suggested requiring DNA as a plea bargain condition at the annual summer meeting of the District Attorneys Association of the State of New York July. He followed this week with a letter to all 62 district attorneys in the state.
“Violent offenders almost always have a non-violent conviction in their past,” Acting Commissioner Byrne said. “Our statistics show that DNA in the databank as a result of one of the pettiest of petty crimes – petit larceny – has linked individuals statewide to 685 crimes, including 175 sexual assaults, 82 robberies and 36 homicides.”
In addition to the plea bargain initiative, Acting Commissioner Byrne said he is providing every district attorney and other law enforcement officials with a list of “serial misdemeanants” who racked up five or more misdemeanor convictions in a two-year period, and urging prosecutors to seek a jail sentence and demand a DNA sample when those individuals are convicted again.
Acting Commissioner Byrne’s proposals have garnered strong support from law enforcement officials and victim rights advocates.
Derek P. Champagne, Franklin County District Attorney and President of the District Attorneys Association of the State of New York: “Although not all crimes can be solved by modern scientific techniques, we know that DNA is a powerful tool that can often lead to convictions of rapists and murderers, among others. These convictions not only bring some measure of justice to the victims and their families, but also prevent the commission of additional crimes with still more tragic victims. I support all reasonable expansion of the DNA database, including this initiative. Serial misdemeanants almost always leave behind a trail of victims. Such offenders care nothing about their victims or about their impact on society. We should concentrate our efforts to remove them, at least temporarily, from the system.”
John P. Melville, Acting Superintendent, New York State Police: “The State Police supports expansion of the DNA database. The Forensic Investigation Center is capable of handling the increased caseload that would result from District Attorneys’ conditioning plea bargains on the submission of a DNA sample.”
Ariel Zwang, CEO of Safe Horizon, a victim assistance organization: “Safe Horizon appreciates Commissioner Byrne’s tireless efforts to keep New Yorkers safe and secure in their communities. This proposal will give law enforcement a valuable tool to stop violence and abuse, and at the same time help to bring closure to unsolved crimes. Safe Horizon is grateful to DCJS for understanding the malicious effects crime has on families and communities, and is proud to support this proposal.”
Richard Aborn, President of the Citizens Crime Commission: “We know with certainty that criminals often commit non-violent crimes before they move onto violent offenses. Collecting DNA from all convicted criminals can help deter these future violent acts – and exonerate those who are wrongly convicted or suspected of a crime. DNA is a powerful and proven crime-fighting tool and it is very wise of prosecutors to use their plea bargaining power to collect DNA samples from convicted criminals, thus enhancing public safety.”
Richard A. Brown, Queens District Attorney: “The cost of omitting many crimes from the DNA databank – as is the case under existing law – is that those who commit brutal acts of violence oftentimes escape identification and remain free to leave more victims in their wake. Earlier this year, for example, a Queens man believed to have been a first-time offender was arrested and pleaded guilty to petit larceny. A DNA swab taken post-conviction revealed that he was wanted for raping an 11-year-old child and a 19-year-old woman on separate occasions years apart. There is no question that DNA evidence has become a critical tool in law enforcement investigations. That is why I join my colleagues in taking this important step which will further assist us in ensuring that justice is served by convicting the guilty and exonerating the innocent.”
R. Michael Tantillo, Ontario County District Attorney: “It has been demonstrated beyond question that the larger the DNA database, the more crimes will be solved. However, even more importantly, more crimes will also be prevented. This initiative will save lives, plain and simple, and I applaud Commissioner Byrne for taking the lead on this extraordinarily important task.”
Robert M. Carney, Schenectady County District Attorney: “Our experience in Schenectady has convinced me that criminals are seldom specialists. Securing DNA samples from non-violent offenders may solve violent crimes and, more importantly, prevent new ones. My office will implement the Commissioner’s recommendations.”
Nicole M. Duvé, St. Lawrence County District Attorney: “One of the fastest ways to advance the successful investigation and prosecution of crimes is through the use of the DNA Databank when DNA evidence is left at a crime scene. By obtaining DNA on all misdemeanor plea bargains and targeting repeat offenders for inclusion in the Databank, we can address shortcomings in the current law and enhance the usefulness of this important law enforcement tool.”
John C. Tunney, Steuben County District Attorney: “I'm happy to join Commissioner Byrne and fellow DAs in helping the State of New York increase the efficiency and effectiveness of law enforcement by expanding the DNA profiles available to law enforcement. A tool as effective as this is just too hard to ignore.”
Frank D. Phillips II, Orange County District Attorney: “DNA database evidence is critical to public safety. In Orange County, the database has led to convictions in three ‘cold case’ murders. Without the data base, these crimes would never have been solved. The expansion of the number of convicted criminals who are required to provide DNA samples will provide law enforcement the opportunity to solve even more crimes and will serve the interests of justice for all of our citizens.”
James Murphy, Saratoga County District Attorney: “As a district attorney, I hold offenders accountable, but must also do what I can to prevent crimes from occurring in the first place. By collecting DNA on misdemeanors as part of a statewide initiative lead by DCJS, our communities will be safer. We can actually take violent offenders off the street before they prey on another victim. The Legislature must act immediately and pass a statewide DNA bill. Until the Legislature acts, DAs have no choice but to do what we can to obtain DNA from all those convicted of crimes. If we can save a woman from being raped or a family the heartache of mourning a loved one’s death, then we will have done what the Legislature has failed to do.”
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