In popular television shows like Law and Order, criminal cases end with a public trial in front of a judge or jury. In the real world, experts estimate that over 90% of federal and state criminal cases end in plea bargains.
This article will explain how the plea bargaining process works and review the pros and cons of plea deals for defendants and prosecutors.
What Is a Plea Bargain?
A plea bargain is an agreement between the defendant and the prosecution to resolve a criminal case without going to trial. The defendant typically agrees to plead guilty or no contest to one or more of the charged offenses, and the prosecution agrees to one or both of the following:
- dismiss or reduce some charges to less serious offenses (sometimes referred to as charge bargaining), or
- recommend a lighter sentence or punishment (sentencing bargaining).
When Can You Plea Bargain?
In most jurisdictions and courthouses, plea bargaining can take place at any stage in the criminal justice process. Plea deals often happen soon after a defendant has been charged, but some plea bargains aren’t reached until the morning of trial.
If a trial results in a hung jury, in which jurors are split and can’t reach a verdict, the prosecution and defense can—and often do—negotiate a plea rather than go through another trial.
What Is the Process of Plea Bargaining?
The prosecutor and defense attorney typically discuss the case on the phone, over email, or in the hallway outside of the courtroom. If the prosecutor offers a plea, the defense attorney must convey the offer to the defendant. It is up to the defendant, not the defense attorney, to decide whether to accept a plea offer.
When the defense and prosecution reach an agreement, the defendant enters a plea of guilty at the next court date. Sometimes defendants are allowed to enter a “no contest” (nolo contendere) plea instead of a guilty plea. A no contest plea allows the defendant to accept some kind of punishment without actually admitting guilt.
A judge at a plea hearing must:
- approve the plea deal
- advise defendants of the constitutional rights they are giving up, and
- explain the consequences of the plea, including potential punishment and immigration consequences.
Sentencing might happen immediately after the judge accepts the defendant’s plea or a sentencing hearing following a probation department report.
Benefits of Plea Bargaining for Defendants
Criminal defendants plea bargain for practical reasons. They typically want to avoid the time and cost of defending themselves at trial and the risk of harsher punishment. Even defendants who think they have a strong defense might not be willing to risk the uncertainty of going to trial out of fear that they’ll end up with serious convictions, significant jail time, and collateral damage to their jobs and families. In short, defendants who bargain are often cutting their losses for the following reasons.
Less Punishment
Modern criminal discovery requires prosecutors to share evidence with the defendant before trial, so defendants have a pretty good idea of the strengths and weaknesses of the prosecution’s case. Defendants who anticipate a guilty verdict, have a strong motive to ask for a plea deal that will minimize the penalties at sentencing.
While the ultimate sentence is up to the judge, a promise from the prosecutor to dismiss certain charges (charge bargain) or recommend a lighter sentence (sentencing bargaining) is a powerful incentive for many defendants to give up their right to a trial.
And, in many cases, judges give defendants who have accepted responsibility for their crime a lighter sentence.
Get Out of Jail Faster
The bail system works by taking money from defendants charged with crimes in exchange for their release. People who can’t afford bail (and who can’t gain release on their promise to appear) stay in jail until their trial.
The cash bail system forces poor defendants to choose between paying bail money they can’t afford, sitting in jail until they go to trial, or plea bargaining to get out as quickly as possible, regardless of their guilt.
Reduce Collateral Damage
A “collateral consequence” is a result of a conviction that is not part of the sentence imposed in criminal court. For example, a conviction for driving under the influence can result in the loss of a driver’s license, which is an action taken by a state’s licensing agency, not a criminal judge. Or, a felony conviction might trigger the revocation of a professional license, make it illegal to lawfully possess a firearm, or lead to negative treatment by federal immigration authorities.
Sometimes, the collateral consequences of a conviction are more severe than the criminal sentence itself and defendants are willing to forgo a trial to avoid the sanctions.
Benefits of Plea Bargaining for Prosecutors
When prosecutors file charges against a defendant, they have concluded that they have enough evidence to convince a judge or jury that the defendant is guilty beyond a reasonable doubt. But trials don’t always unfold as planned. Prosecutors often settle for less than “guilty on all counts” for the following reasons.
Guaranteed Conviction
The primary reason prosecutors plea bargain is simply to guarantee a conviction. The outcome of a criminal trial is always uncertain and unpredictable, even when the evidence against a defendant is strong.
Guaranteed convictions are important to prosecutors because the vast majority of state and local prosecutors in the United States are elected. Prosecutors often run on “tough on crime” policies and cite high conviction rates when seeking reelection.
Keeps the System Running
In busy courthouses, criminal defendants who insist on their constitutional right to a speedy trial fill up available court time and bump other cases out of the way (often civil lawsuits for money damages), sometimes for years. Lengthy delays are emotionally and financially draining for the parties, cause scheduling nightmares, and can weaken cases as witnesses’ memories fade over time.
Plea bargains keep the system moving. A plea bargain takes mere minutes of court time, while a criminal trial can take days or even months. Without plea bargaining, the judicial system would grind to a halt under its own weight.
Securing Testimony of a Co-Defendant or Informant
Prosecutors plea bargain for strategic reasons in cases involving more than one defendant. For example, if three people are charged with robbing a convenience store, a prosecutor might offer a good plea deal to one defendant in exchange for that defendant’s testimony against the other two.
Prosecutors also use plea bargaining to cultivate informants. Informants provide information to law enforcement about criminal activity in exchange for a benefit. For example, prosecutors cut deals with “jailhouse informants” who provide testimony—usually about how a defendant confessed to a crime while in custody—in exchange for a reduced charge or sentence.
Protect Vulnerable Witnesses
Prosecutors sometimes plea bargain to protect witnesses who don’t want to testify in court. Many witnesses, especially survivors of sexual assault or child abuse, don’t want to relive their traumas in court. A victim’s willingness to testify is a factor in a prosecutor’s decision about whether to make a deal and what the terms will be.
Case Falls Apart
When prosecutors file charges, they think they have enough evidence to prove the case beyond a reasonable doubt, but a lot can happen between charging and trial. As prosecutors learn more about a case, they might not like what they find: A key witness might disappear or might not be as credible as the police report suggests, or a defense investigator might track down witnesses or evidence helpful to the defense. A prosecutor may be willing to plea bargain a weak case, rather than go to trial and risk an acquittal or hung jury.
Domestic violence cases (a catch-all term for violent acts or threats that occur between intimate partners) can be especially challenging for prosecutors. For example, when a wife refuses to testify against her husband, the prosecutor might offer a favorable plea bargain rather than risk having the case dismissed entirely because the victim refuses to testify.
Second Thoughts: Can the Defendant Withdraw a Plea?
Now and then, defendants have second thoughts and wish to withdraw their pleas. Mere buyer’s remorse is not good grounds for undoing plea bargains. A judge can withdraw a guilty plea post-sentence only when there is clear evidence of injustice. From a practical perspective, judges are reluctant to spend time rehashing past cases.
When a defendant successfully withdraws a guilty plea, the charges don’t go away. The case is restored to its status before the plea was entered. Any charges that the court dismissed as part of the bargain are reinstated.
Can You Bargain for Justice?
Plea bargaining makes sense if you assume that the prosecutor and defendant are opponents on a level playing field with the judge acting as a referee. Critics of plea bargaining argue that because prosecutors have far more power and resources than defendants, in reality, plea bargains are coercive and undermine important constitutional rights.
In most jurisdictions, prosecutors know the sentence that accompanies a set of charges because of mandatory sentencing laws. Prosecutors sometimes overcharge to increase their bargaining power in plea negotiations, even though it angers some judges, who see it as a bullying tactic. Critics say overcharging results in wrongful convictions and wonder whether bargaining involves a discount for pleading guilty or a penalty for refusing to do so.
Discuss the Pros and Cons of Plea Bargains With an Attorney
The decision of whether to accept a plea bargain is not an easy one and will depend on the specific facts of your case. You must consider the short- and long-term consequences of your plea. Only an experienced criminal defense attorney can help you make this decision.