A defendant charged with a crime often has a tough choice to make: accept a plea deal with a negotiated punishment or “go open” to the judge for sentencing. Choosing to go open means the defendant enters a plea of guilty without an agreement on the punishment, leaving the final sentencing decision entirely up to the judge.
This strategy is risky, but can be beneficial, in a certain set of circumstances. Regardless, it is important to understand what it entails.
When a defendant chooses to go open, they’re essentially telling the judge, “I accept responsibility, and I trust the court to determine a fair sentence.” This usually happens after plea negotiations have failed or if the defendant and their attorney believe the judge might recognize the more appropriate punishment than the prosecution. Having the judge set the punishment is a good choice when a defendant has significant mitigating evidence—such as character witnesses, employment history, remorse, or evidence of rehabilitation.
The sentencing hearing in an open plea is a trial. Both the defense and the prosecution call witnesses and enter exhibits into evidence. Victims often testify, and usually the defendant does as well. The judge will consider all of this information, as well as the defendant’s criminal history, the nature of the offense, and just about anything either side considers important.
One advantage of going open is the opportunity for personalized advocacy. Unlike a plea bargain, which is negotiated behind closed doors, an open plea allows the judge to hear a broader context of the case. This could work in the defendant’s favor if there are compelling mitigating circumstances. Additionally, some judges are known to offer more lenient sentences than prosecutors are willing to negotiate.
However, going open is not without risk. Once the plea is entered, the judge has wide discretion. They may impose a harsher sentence than what was offered in a plea deal.
Ultimately, choosing to go open should be a strategic decision made with guidance from a defense attorney who understands the tendencies of the judge and the local court culture. It is a path that offers hope for mercy—but requires careful consideration and preparation.
