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What Is a Disparate Plea in Massachusetts?

How a Defendant Can Plead Guilty or Admit to Sufficient Facts While Asking the Judge for a Better Sentence Than the Prosecutor Recommends

By Patrick L. Garrity, Boston Criminal Defense Attorney

Not every Massachusetts criminal case resolves with the prosecutor and defense agreeing on the sentence.

Sometimes the parties agree that a case should be resolved without trial but disagree about what the appropriate disposition should be.

The prosecutor may recommend eighteen months of probation while the defense asks for twelve.

The Commonwealth may request incarceration while the defense seeks probation.

The parties may agree on most conditions of probation but disagree about its length.

The prosecutor may ask for a guilty finding while the defense seeks a continuance without a finding, commonly known as a CWOF, where legally available.

When the defendant enters a plea or admission and the prosecution and defense present different sentencing recommendations to the judge, Massachusetts lawyers commonly refer to the proceeding as a disparate plea.

I have used disparate pleas in Massachusetts criminal cases when negotiations have narrowed the disagreement substantially but the defense believes there is a legitimate basis to ask the judge for a more favorable disposition than the Commonwealth is willing to recommend.

A disparate plea essentially says:

We have not reached complete agreement with the prosecutor, so we are asking the judge to decide the remaining sentencing dispute.

That can be an extremely useful tool in the right case.

It can also carry consequences that a defendant needs to understand before deciding to proceed.

What Does “Disparate Plea” Mean in Massachusetts?

“Disparate” simply means different.

In a Massachusetts disparate plea, the prosecution and defense present different dispositional recommendations to the judge.

Massachusetts Rule of Criminal Procedure 12 expressly recognizes pleas where there is no agreed-upon sentencing recommendation. In that circumstance, the judge gives both parties the opportunity to recommend a disposition.

The Rules' commentary likewise recognizes that plea arrangements can involve the parties presenting “disparate positions” regarding disposition.

For example:

Commonwealth's recommendation:
18 months of probation.

Defense recommendation:
12 months of probation.

Or:

Commonwealth's recommendation:
Two years in the House of Correction, six months to serve, balance suspended.

Defense recommendation:
Two years in the House of Correction, suspended for two years of probation.

Or, in an appropriate District Court case:

Commonwealth's recommendation:
Guilty finding with probation.

Defense recommendation:
Continuance without a finding followed by dismissal if the defendant successfully completes the required conditions.

The judge hears both positions and determines the appropriate disposition within the governing legal framework.

Is a Disparate Plea the Same as a Plea Agreement?

Not necessarily.

That distinction is important.

Massachusetts Rule of Criminal Procedure 12 recognizes several different plea structures.

The prosecutor and defendant can reach a complete agreement about both the charges and disposition.

They can reach certain agreements while leaving sentencing recommendations unresolved.

Or a defendant can tender a guilty plea or, in District Court, an admission to sufficient facts without reaching a sentencing agreement with the Commonwealth at all.

A disparate plea usually falls into the latter categories.

The central feature is that the judge is hearing different sentencing positions rather than a single agreed recommendation.

That makes the sentencing presentation especially important.

Why Would a Defendant Enter a Disparate Plea?

Because negotiations do not always have to be all-or-nothing.

A defense lawyer might negotiate extensively with the prosecutor and agree about:

  • which charges will resolve;
  • whether other charges will be dismissed;
  • what probation conditions are appropriate;
  • restitution;
  • stay-away conditions;
  • treatment requirements;
  • counseling;
  • community service; or
  • other aspects of the disposition.

Yet one issue may remain.

Perhaps the prosecutor insists upon eighteen months of probation and the defense believes twelve months is sufficient.

At that point, the defendant may have several choices.

The defendant could accept the prosecutor's recommendation.

The defendant could reject the resolution and proceed toward trial.

Or, depending upon the circumstances, the defendant may be able to resolve the case while asking the judge to impose the defense recommendation instead.

That third option is where a disparate plea can become strategically valuable.

A Common Example: Disagreeing About the Length of Probation

One of the clearest examples involves probation.

Imagine a first-time defendant with no prior criminal record.

The parties agree on:

  • resolving the case;
  • the substantive probation conditions;
  • treatment or counseling if appropriate;
  • no new offenses;
  • any required stay-away order; and
  • essentially every other component of the disposition.

But the Commonwealth recommends 18 months of probation while the defense believes 12 months is sufficient.

There may be little reason to force an otherwise resolvable case to trial solely because the parties disagree about six months of supervision.

Instead, the defense may present the disagreement to the judge.

The prosecutor explains why eighteen months is appropriate.

The defense explains why twelve months adequately serves the purposes of sentencing.

The judge then determines the appropriate disposition.

I have handled Massachusetts criminal matters in precisely this type of posture: the real work becomes showing the judge why the additional punishment requested by the Commonwealth is unnecessary, rather than arguing that the case cannot be resolved at all.

Why the Defense Argument Matters So Much in a Disparate Plea

A disparate plea is not simply:

“The prosecutor wants eighteen months. We would prefer twelve.”

That is not advocacy.

The defense should explain why its recommendation is more appropriate.

Depending upon the case, I may want the judge to understand:

  • the defendant's lack of criminal history;
  • employment;
  • education;
  • treatment;
  • compliance with pretrial conditions;
  • absence of new allegations;
  • family responsibilities;
  • professional consequences;
  • immigration consequences;
  • community involvement;
  • restitution;
  • the length of time the case has already been pending;
  • progress made during that period;
  • whether the defendant has already voluntarily completed counseling or programming;
  • and why the defense proposal adequately addresses deterrence, accountability, rehabilitation, and public safety.

This is one reason I believe mitigation should begin long before the plea date.

If I am asking a judge to choose my recommendation over the Commonwealth's, I want to give the judge something concrete upon which to base that decision.

What Happens During a Disparate Plea Hearing?

Although individual judges and courts have different practices, a typical Massachusetts plea involves several important stages.

First, the judge determines the nature of the plea arrangement and whether there is an agreement between the Commonwealth and defense.

The defendant then tenders the guilty plea or, where permitted in District Court, an admission to sufficient facts.

The judge conducts a plea colloquy.

That colloquy is critically important because entering a plea involves waiving fundamental constitutional rights.

Among other things, the defendant must understand that the plea gives up the right to:

  • a trial;
  • a jury trial where applicable;
  • confront and cross-examine prosecution witnesses;
  • require the Commonwealth to prove guilt beyond a reasonable doubt;
  • remain silent rather than incriminate oneself at trial; and
  • continue to be presumed innocent unless and until the prosecution proves guilt.

The judge must determine that the plea or admission is knowing and voluntary and that there is an adequate factual basis supporting the charge.

The prosecutor then provides the factual basis for the charge.

After that, where there is no agreed sentencing recommendation, both sides have the opportunity to advocate for their respective dispositions.

That is the heart of the disparate plea.

Does the Judge Have to Follow Either Recommendation?

Generally, the judge is not simply required to choose between two boxes.

The judge retains sentencing discretion, subject to applicable statutes, the plea structure, Rule 12, and any limitations created by an agreement or the defendant's right to withdraw the plea.

Rule 12 specifically provides that, outside certain binding plea agreements involving both an agreed disposition and prosecutorial charge concessions, the parties' sentencing recommendations ordinarily do not bind the judge.

The judge may:

  • adopt the Commonwealth's recommendation;
  • adopt the defense recommendation;
  • impose something between them;
  • propose another lawful disposition; or
  • in appropriate circumstances, decline to accept the plea.

That uncertainty is precisely why a defendant should understand the procedural protections that apply before entering a disparate plea.

The District Court “Defendant-Capped” Protection

This is one of the most important features of Massachusetts District Court plea practice.

Massachusetts General Laws chapter 278, § 18 provides that when a defendant before the Boston Municipal Court or District Court cannot reach agreement with the Commonwealth concerning a recommended disposition, the defendant may tender a guilty plea together with his or her own request for a specific disposition.

The statute further provides that the court cannot impose a disposition exceeding the defendant's requested disposition without first giving the defendant the right to withdraw the plea.

Rule 12 incorporates the same protection.

Where there is no agreed sentencing recommendation in District Court, the judge must advise the defendant that the disposition imposed will not exceed the terms of the defendant's own request without first giving the defendant the right to withdraw the plea.

This procedure is sometimes called a defendant-capped plea.

The Massachusetts Trial Court describes it similarly: if the District Court judge does not accept the defendant's requested disposition, the defendant generally has the opportunity to accept an alternative proposed disposition or withdraw the plea and continue toward trial.

That can create significant strategic value.

An Example of a Defendant-Capped Disparate Plea

Suppose the Commonwealth recommends:

18 months probation.

The defense asks for:

12 months probation.

In an ordinary District Court disparate plea subject to the defendant-capped procedure, the judge may determine that twelve months is appropriate and impose the defense recommendation.

The judge might instead believe fifteen months is appropriate.

The defendant can then evaluate whether to accept that disposition.

But if the judge intends to impose a disposition exceeding the protection afforded by the defendant's requested cap, the defendant has the right to withdraw the plea rather than be unexpectedly subjected to a harsher sentence.

That protection can make a District Court disparate plea an important negotiating and sentencing tool.

Is the Rule the Same in Massachusetts Superior Court?

No.

This is an extremely important distinction.

Under current Rule 12, when there is no agreed-upon sentencing recommendation, the relevant withdrawal protection differs between District Court and Superior Court.

In District Court, the defendant's own request provides the relevant ceiling before the right to withdraw is triggered.

In Superior Court, Rule 12 provides that the judge will not impose a disposition exceeding the prosecutor's recommendation without first giving the defendant the right to withdraw the plea.

That means a defendant should never assume that a disparate plea works identically in every Massachusetts court.

The procedural posture, charges, court, agreements between the parties, and sentencing recommendations all matter.

This is one reason plea decisions require careful individualized advice from defense counsel.

What Is a CWOF and Can It Be Requested in a Disparate Plea?

A continuance without a finding, or CWOF, is a common Massachusetts District Court disposition.

With a CWOF, the defendant typically admits that the Commonwealth possesses sufficient facts to support a guilty finding, but the court does not immediately enter a conviction. Instead, the case is continued for a specified period subject to conditions.

If the defendant successfully completes the required period and conditions, the case may then be dismissed.

Whether a CWOF is legally available depends upon the charge and circumstances.

General Laws c. 278, § 18 expressly recognizes that, where not otherwise prohibited by law, a defendant's requested District Court disposition may include continuing the case without a finding until a specified date and dismissing it upon successful completion of specified conditions.

That means there can be cases where:

Commonwealth:
requests a guilty finding.

Defense:
asks the judge for a CWOF.

The judge must then evaluate the competing positions within the applicable legal framework.

A CWOF is not available or appropriate in every case, and it should not be viewed as equivalent to an acquittal. It can also carry significant collateral consequences despite the absence of a conventional guilty judgment.

Can the Defense Ask for a Better Result Than the Prosecutor Offered?

Yes, but asking and obtaining are two different things.

The defense should have a reasoned basis for requesting the lower disposition.

I generally view the best disparate plea arguments as comparative sentencing arguments.

Instead of merely arguing that the client is deserving of mercy, explain why the Commonwealth's additional punishment accomplishes little or nothing that the defense proposal does not already accomplish.

For example:

If both sides agree upon counseling, does eighteen months of probation materially promote rehabilitation beyond twelve months?

If a defendant has already remained arrest-free and fully compliant for a lengthy period while the case was pending, what additional public-safety benefit does the prosecutor's longer proposed term provide?

If the client voluntarily completed treatment before sentencing, should the court impose an unnecessarily lengthy probation period merely so that the client can be ordered to continue doing something already accomplished?

If both proposals adequately punish and deter the conduct, why should the judge select the unnecessarily harsher one?

Those are much stronger questions than:

“Can you please give my client a break?”

Why Mitigation Can Decide a Disparate Plea

A disparate plea is one of the moments where work performed months earlier can directly affect the result.

Suppose two defendants each ask for twelve months of probation rather than the Commonwealth's eighteen.

Defendant A presents nothing besides counsel's assertion that twelve months is enough.

Defendant B provides evidence showing:

  • stable employment;
  • no prior record;
  • complete compliance with release conditions;
  • voluntary counseling;
  • completed community service;
  • family responsibilities;
  • no subsequent allegations;
  • and a clear plan for continued stability.

Those are very different sentencing presentations.

When I know a case may ultimately resolve through a plea, I often encourage clients to begin building mitigation early rather than waiting until the courthouse date.

The objective is not to manufacture a favorable image.

It is to create genuine evidence the judge can rely upon.

A Disparate Plea Can Also Be Useful When the Parties Agree on Almost Everything

Sometimes the disagreement is surprisingly narrow.

The parties may agree about:

  • the charge;
  • whether the case will resolve;
  • probation;
  • counseling;
  • restitution;
  • no-contact conditions;
  • drug testing;
  • community service; and
  • virtually every other term.

They disagree only about one issue.

In my view, one of the benefits of a disparate plea is that it allows the defense to isolate that issue.

The court does not necessarily need to decide the entire case from scratch.

The lawyer can tell the judge:

“Your Honor, the parties have narrowed this case significantly. The only issue separating the recommendations is the length of probation.”

That focused presentation can be considerably more effective than turning a relatively modest sentencing disagreement into an unnecessary trial.

What Is the Difference Between a Disparate Plea and a “Lobby”?

Massachusetts criminal practitioners sometimes use the term lobby conference to describe judicial participation in plea discussions.

That is related to, but not synonymous with, a disparate plea.

Rule 12 permits a judge to participate in plea discussions at the request of one or both parties, provided that the discussions are recorded and made part of the record.

A judicially involved plea discussion can sometimes help the parties understand how the court views a possible resolution.

A disparate plea, by contrast, refers principally to the parties presenting different sentencing positions.

A case can involve judicial plea discussions and later result in a disparate plea.

Or the parties may proceed to a disparate plea without any meaningful judicial participation in prior negotiations.

The concepts should not automatically be treated as interchangeable.

Does the Prosecutor Have to Agree to a Disparate Plea?

A defendant does not necessarily need the Commonwealth's agreement simply to tender an otherwise lawful plea to the charge pending before the court.

Rule 12 expressly allows a defendant to tender a guilty plea, nolo contendere plea where permitted, or District Court admission to sufficient facts without entering into a plea agreement with the prosecutor.

And Massachusetts appellate authority has recognized that the Commonwealth's consent is not inherently required for a defendant to plead guilty to the charge actually before the court.

But that does not mean the defense can force the Commonwealth to make prosecutorial concessions.

The prosecutor retains authority over decisions such as:

  • whether to dismiss charges;
  • whether to reduce charges;
  • whether to amend a complaint or indictment where permitted;
  • whether to forego additional charges; and
  • other matters committed to prosecutorial discretion.

So if the proposed resolution depends upon the Commonwealth dismissing or reducing a charge, the prosecutor's agreement may be critically important.

The exact structure matters.

Can the Judge Reject the Plea Entirely?

Yes.

A defendant does not possess an absolute right to force a judge to accept a guilty plea, admission to sufficient facts, or plea of nolo contendere.

Rule 12 requires the judge to determine that the plea is voluntary, that the defendant understands the charge and consequences, and that there is an adequate factual basis.

The judge also retains discretion to refuse to accept a plea in appropriate circumstances.

A disparate plea should therefore never be presented to a client as a guaranteed mechanism for obtaining the defense recommendation.

It is a procedure through which the defense can ask the judge to exercise sentencing discretion favorably.

What Facts Does the Judge Consider?

The prosecutor ordinarily presents the factual basis supporting the criminal charge.

The defense then has the opportunity to present information relevant to sentencing and mitigation.

Massachusetts Rule of Criminal Procedure 28 specifically provides that before sentence is imposed, the defendant or defense counsel must be given an opportunity to speak and present information in mitigation of punishment.

Depending upon the case, that can include:

  • criminal history;
  • lack of criminal history;
  • employment;
  • education;
  • treatment;
  • rehabilitation;
  • family circumstances;
  • collateral consequences;
  • compliance with release conditions;
  • restitution;
  • victim impact;
  • community involvement;
  • conduct while the case has been pending;
  • prior supervision history; and
  • other individualized sentencing information.

In certain disparate pleas, the Massachusetts sentencing bench book notes that a judge may require the defendant to admit the Commonwealth's factual recitation if the judge intends to rely on those facts in sentencing.

That is another reason a defendant needs to understand exactly what is being admitted before proceeding.

Should a Defendant Always Take a Disparate Plea When the Prosecutor's Offer Is Too Harsh?

No.

Sometimes the correct decision is to go to trial.

Sometimes further negotiations may produce a better resolution.

Sometimes a motion should be litigated first.

Sometimes the difference between the competing recommendations is too small to justify the uncertainty of placing the decision before the court.

Sometimes the defense possesses substantial trial leverage that should not be surrendered.

And sometimes the disparity is so significant that the defendant does not want to plead guilty or admit to sufficient facts unless the Commonwealth first agrees to meaningful concessions.

There is no universal rule.

The decision should depend upon:

  • the strength of the Commonwealth's evidence;
  • available legal defenses;
  • mandatory sentencing consequences;
  • collateral consequences;
  • immigration consequences;
  • sex-offender-registration consequences where applicable;
  • professional licensing;
  • employment;
  • the client's criminal record;
  • the judge;
  • the court;
  • the prosecutor's recommendation;
  • the defense recommendation;
  • whether the defendant has withdrawal protection;
  • and the client's individual tolerance for risk.

The Difference Between “Can We Win at Trial?” and “Should We Take the Plea?”

These are separate questions.

A criminal case may contain legitimate defenses and still present substantial trial risk.

Conversely, the Commonwealth may possess evidence sufficient to survive pretrial litigation but still face real problems proving guilt unanimously beyond a reasonable doubt.

When advising a client about a disparate plea, I try to compare the known resolution opportunity against the range of realistic trial outcomes.

That includes more than the probability of conviction.

It also includes:

  • the sentence after conviction;
  • mandatory minimums;
  • collateral consequences;
  • the possibility of acquittal;
  • the possibility of a hung jury;
  • the cost and stress of trial;
  • delay;
  • the value of favorable plea terms;
  • and how much additional punishment the Commonwealth is actually seeking beyond the defense request.

A six-month disagreement concerning probation may be worth presenting to the judge.

A plea carrying consequences dramatically different from what the defense considers acceptable may require a very different analysis.

A Disparate Plea Is Ultimately a Sentencing Argument

One reason I find disparate pleas useful is that they force the defense lawyer to answer a very specific question:

Why is our proposed sentence enough?

Not why the client is perfect.

Not why the allegation should be ignored.

Not why punishment should disappear.

Why does the defense recommendation adequately satisfy the legitimate objectives of sentencing?

That can involve accountability.

It can involve deterrence.

It can involve rehabilitation.

It can involve public safety.

It can involve proportionality.

And it can involve showing why the incremental punishment requested by the Commonwealth is unnecessary.

That is a much more focused form of advocacy than simply asking for leniency.

Questions to Ask Your Massachusetts Criminal Defense Lawyer Before a Disparate Plea

Before proceeding, a defendant should understand at least the following:

What exactly is the Commonwealth recommending?

What exactly is the defense asking the judge to impose?

What parts of the resolution have the parties already agreed upon?

Which issues remain disputed?

Is this a District Court defendant-capped plea?

What happens if the judge does not accept the defense recommendation?

Can I withdraw the plea?

What is the worst disposition I could receive without being allowed to withdraw?

What charges will remain or be dismissed?

Will I receive a guilty conviction or a CWOF?

What probation conditions are anticipated?

Are there immigration, licensing, employment, firearm, or sex-offender-registration consequences?

What happens if I reject the plea and go to trial?

What mitigation will my lawyer present to support the defense recommendation?

If a defendant cannot answer those questions, the defendant should continue discussing the matter with counsel before entering the plea.

Disparate Pleas in Massachusetts Criminal Cases

A disparate plea can be one of the most useful tools available in Massachusetts criminal practice when the defense and prosecution have moved close to a resolution but cannot agree upon the final disposition.

It allows the defense to say:

The Commonwealth and defense disagree. Here is our recommendation, here is the evidence supporting it, and here is why we believe the court should adopt it.

Used appropriately, the procedure can prevent a limited sentencing disagreement from forcing an otherwise resolvable criminal case to trial.

But it is not risk-free, and the protections differ depending upon the court and the precise plea structure.

Understanding those distinctions is essential.

Massachusetts Criminal Plea and Sentencing Representation

Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals facing criminal charges in Massachusetts District Court, the Boston Municipal Court, Massachusetts Superior Court, and federal court.

His practice includes plea negotiations, disparate pleas, sentencing advocacy, mitigation development, continuances without a finding, probation-related matters, Massachusetts Superior Court jury trials, federal criminal defense, constitutional motion practice, and other serious criminal matters.

Patrick works with clients to evaluate not only whether a plea is available, but whether the proposed disposition makes sense when compared with the evidence, available defenses, likely sentencing exposure, collateral consequences, and realistic risks of trial.

Every criminal case and plea decision is different. Individuals considering a guilty plea, admission to sufficient facts, CWOF, or disparate plea should obtain individualized legal advice based upon the particular charges, court, evidence, criminal history, and proposed disposition.

Prior results do not guarantee a similar outcome.