You probably learned in school that every person arrested for a criminal offense in the United States has the right to a jury trial. What you may not have learned is that most criminal defendants do not exercise that right. Instead, they make an agreement with the government that resolves their case without a trial. That agreement, usually known as a plea bargain, is an essential component of the criminal justice system. This article will answer the questions that people raise about plea bargaining.

What is a plea bargain?

A plea agreement is a negotiated settlement of a criminal accusation. Just as most civil lawsuits settle out of court, most criminal accusations are resolved by negotiating, or bargaining, for an outcome that both sides prefer to allowing guilt to be determined by a jury.

Plea agreements take the form of charge bargaining (agreements regarding the crime); sentence bargaining (agreements regarding the recommended sentence); or a combination of the two. Plea bargaining typically resolves a pending criminal charge in one or more of the following ways:

  • The defendant agrees to plead guilty to a charged offense in exchange for the government’s agreement to dismiss other charges.
  • The defendant agrees to plead guilty to a less serious charge in exchange for the government’s agreement to amend the pending charge to the lesser charge.
  • The defendant agrees to plead guilty to one or more charges in exchange for the government’s agreement to join with the defendant in recommending a particular sentence.
  • The defendant agrees to plead guilty to one or more charges in exchange for the government’s agreement to cap the sentence it requests (that is, to ask for no harsher sentence than the agreed upon cap), while leaving the defendant free to argue for a lesser sentence.
  • The defendant agrees to plead guilty to one or more charges in exchange for the government’s agreement to make no sentencing recommendation.
  • The defendant agrees to plead guilty to one or more charges in exchange for the government’s agreement to refrain from taking some other action (such as charging additional crimes or charging the defendant’s spouse with a related crime).
  • The government agrees to dismiss all charges, provided that the defendant engages in certain actions (such as completing a course of drug or alcohol treatment, or an anger management course) prior to the dismissal.

Occasionally, a defendant agrees to plead guilty without any concession from the government. Criminal defense lawyers call this "pleading blind," because the absence of a plea agreement limits the defendant’s ability to predict the sentence that he or she might receive. Although the defendant might agree with the government that a guilty plea will be entered, pleading blind does not involve plea bargaining.

In each of these examples, the agreement might permit a plea of no contest (or its equivalent under state law) instead of a guilty plea. A plea of no contest permits the court to find the defendant guilty, but it does not serve as an admission of guilt that can be used against the defendant in a civil lawsuit.

Why do defendants engage in plea bargaining?

The right to a jury trial is valuable, but exercising that right can be risky. If the jury finds the defendant guilty, the judge can generally impose any sentence up to the maximum that the judge deems appropriate. Some states have confined judicial discretion by requiring judges to consider sentencing guidelines, but even in those states, a defendant runs the risk of receiving a harsher sentence after a guilty verdict than the defendant might receive after making a plea bargain for a lesser charge or an agreement to recommend a specific sentence.

Just as defendants enter into plea agreements to avoid risking an unfavorable jury verdict, so does the government. The greater the chance that a defendant might be acquitted following a jury trial, the more likely it is that the government will make a plea bargain that is acceptable to the defendant. For that reason, conducting an investigation that exposes weaknesses in the prosecution’s evidence and preparing a strong defense is essential to effective plea negotiation. Defendants who negotiate from a position of strength obtain better plea bargains because prosecutors are more reluctant to commit resources to trials when they fear that the jury will return a not guilty verdict.

Does a plea bargain bind a judge?

As a general rule, if a plea agreement calls for the reduction of a charge, the judge is bound to honor it. After a plea is entered, however, the power of sentencing belongs to the judicial branch of government. The prosecution and defense can recommend a sentence, but the judge is not obligated to follow that recommendation.

It is the judge’s job to impose whatever sentence the judge deems appropriate after considering the nature and circumstances of the crime, the need to protect the public, and the defendant’s good or bad character. As a practical matter, if the prosecution and defense jointly recommend a sentence, the judge will usually impose the recommended sentence or one that is similar. If judges did not routinely follow sentencing bargains, defendants would stop making them. That would cause significantly more cases to go to trial, burdening court calendars that are already congested. If a judge decides not to honor a sentencing bargain, the law in some states requires the court to notify the defendant that it will not impose the agreed upon sentence and to give the defendant a chance to withdraw his or her guilty plea.

A defendant who withdraws a guilty plea can proceed to trial or can try to make a new bargain that the judge is likely to accept. In other states, the defendant is not given the right to withdraw a guilty plea if the judge rejects a jointly recommended sentence, but the defendant must be warned before entering the plea that plea bargains are not binding upon the court.

Is plea bargaining good or bad?

While some people criticize plea bargaining on the grounds that it allows defendants to get away with crimes, the value of plea bargaining is demonstrated by its widespread use. Plea bargains resolve most criminal prosecutions in federal court and in every state. The advantages of plea bargaining include:

  • Providing relative certainty of outcomes to defendants who want to know what the consequences will be of giving up their right to a trial.
  • Allowing the government to obtain a conviction of a guilty defendant (even if it is for a lesser offense than the crime actually committed), rather than risking the defendant’s acquittal after a trial.
  • Saving the time of prosecutors so that they can focus limited resources on the most serious cases.
  • Permitting courts to function.

Without an unrealistic infusion of money into the criminal justice system, cases would not proceed to trial for years if every defendant exercised the right to a trial. Those delays might violate a defendant’s constitutional right to a speedy trial, forcing the dismissal of cases brought against guilty defendants. How many defendants would plead guilty in the absence of a plea bargain is unclear. It is reasonable to assume, however, that when the evidence may create a reasonable doubt of guilt, defendants would be more likely to exercise their right to trial if they could not limit their exposure to a harsh sentence by making a plea agreement.

Is plea bargaining allowed in every court?

For the most part, yes. Plea bargaining is common in federal court, although the Justice Department’s guidelines limit a local prosecutor’s discretion when negotiating the terms of a plea agreement. Those guidelines are viewed as more flexible in some districts than in others.

If you are charged with a federal crime, a criminal defense attorney who handles federal prosecutions in your district can tell you how much discretion the prosecutor will have to negotiate a plea agreement.

Nearly all states recognize the value of plea bargaining and permit it as a matter of state law. Prosecutors in a few counties have attempted to end plea bargaining, but those experiments have generally been unsuccessful. Alaska, which prohibited sentence bargaining between 1975 and the early 1990s, recently renewed its ban on sentence bargaining but continues to permit charge bargaining.

Some prosecutors refuse to plea bargain in certain kinds of cases (particularly impaired driving), while others will not engage in sentence bargaining that would result in a sentence outside of sentencing guidelines. The vast majority of cases are nevertheless resolved by some form of plea negotiation.

To find out what kind of plea agreement might be offered in your case, consult with a lawyer who has experience in defending criminal cases in the jurisdiction where you are charged.