How Do Plea Bargains Work

A plea bargain is an agreement entered into between a prosecutor and a defendant, pursuant to which the defendant agrees to enter into a guilty plea in exchange for concessions from the prosecutor. A plea bargain may include other conditions that the defendant must satisfy in order to be eligible for a reduced charge or sentence. In most jurisdictions a majority of criminal charges are resolved through guilty pleas, largely as the result of negotiated plea bargains.

What are the Types of Plea Bargain

Plea bargaining occurs in three basic forms, charge bargaining, count bargaining and sentence bargaining.

Charge Bargains

A charge bargain involves an agreement through which the prosecutor allows the defendant to plead guilty to a lesser charge, with the dismissal of the original charge upon the court's acceptance of the defendant's guilty plea.

For example, a defendant who is charged with burglary may agree to enter a guilty plea to the lesser charge of attempted burglary. When a charge is included in the governing state or federal sentencing guidelines, the defendant may have a very good idea of the probable sentence that will be issued by the court after the guilty plea is accepted.

Count Bargains

A count bargain occurs when a defendant is charged with more than one offense, and the prosecutor agrees to dismiss one or more offenses in exchange for the defendant's guilty pleas to the remaining offense or offenses.

For example, a defendant who is charged with driving while intoxicated, operating a vehicle with a suspended driver's license, and driving without insurance may agree to plead guilty to the driving while intoxicated charge, with the other charges dismissed at the time of the defendant's guilty plea.

Count bargaining may be combined with charge bargaining, such that a defendant may agree to plead guilty to a reduced charge or charges, with the remaining charges dismissed upon the court's acceptance of the guilty plea.

Sentence Bargains

A sentence bargain involves an agreement between the defense and prosecutor that the defendant will receive a specific sentence in exchange for a guilty plea. Sentence bargaining may help a prosecutor obtain a guilty plea to a very serious charge, when the defendant is concerned that a conviction will result in a very long term of incarceration.

A sentence bargain may also benefit a prosecutor who wants to appear tough on crime by obtaining a guilty plea to a more serious offense, rather than reducing a charge as part of a charge bargain. As the sentencing of a criminal defendant is a judicial act, a sentence bargain must ordinarily be approved by the trial judge. Some jurisdictions and courts severely limit the availability of sentence bargaining In federal courts, the prosecutor has considerable control over the scoring of the sentencing guidelines that define a defendant's sentence, and may use that discretion to negotiate a score that reduces the defendant's sentence in exchange for the defendant's guilty plea.

Prosecutors may also agree to take a specified position at sentencing, such as recommending that a defendant receive an agreed sentence or that a defendant be sentenced to probation instead of jail, or simply to refrain from taking a position at the sentencing hearing. This type of agreement is not subject to judicial review, but the court does not have to follow the prosecutor's recommendation and the defendant has no recourse if the court imposes a different sentence.

Entering Into a Plea Bargain

Plea negotiations normally occur between the prosecutor and the defense. A plea bargain is a contract, and both parties are expected to abide by the terms of the agreement. Many prosecutors will formalize the terms of the agreed plea bargain in writing at the time an agreement is reached with the defense.

When Should a Defendant Consider a Plea Bargain

The point at which a defendant should enter into a plea bargain will depend upon many factors, including the facts of the case, the charges filed, the laws and procedures of the jurisdiction and court in which the charge was filed, and the prosecutor's policies. Sometimes a prosecutor will offer a deal early in the case that will be withdrawn if not accepted by a particular date or stage of the prosecution, or as the case approaches trial. In some situations, a defense attorney may be able to negotiate a plea bargain before a defendant is formally charged with a crime.

If a defense lawyer contacts a prosecutor after an arrest, but before charges are formally filed, the defense attorney may be able to get the prosecutor to agree to charge the defendant with a lesser offense than would normally be filed in the case. If the police are continuing to investigate a crime or related criminal activity, it may be possible to work out a plea bargain that results in a more favorable disposition based upon an agreement to cooperate with the police and prosecution in the continuing investigation and the prosecution of other defendants.

What Happens if the Defendant Breaks a Bargain

As part of a plea bargain, the defendant agrees to enter a guilty plea on terms defined by the plea agreement. Those terms may include such conditions as,

  • Entering a guilty plea as agreed on the scheduled sentencing date;
  • Assisting the police with a criminal investigation;
  • Cooperating with the prosecution in another criminal matter; or
  • Testifying against a co-defendant;

If the defendant does not fulfill all of the agreed conditions, the prosecutor may withdraw the plea bargain and prosecute the defendant on the original charges.

Judicial Review of Plea Bargains

Prosecutors have broad discretion to decide how a defendant should be charged, and thus a prosecutor's charge bargain or count bargain is not ordinarily subject to judicial review.

Depending upon the other terms of a plea bargain, a court may find that the plea agreement does not serve the interest of justice and decline to accept the plea bargain. Sometimes a court will conditionally approve a sentence bargain, subject to review based upon the facts that emerge during a presentence investigation or at the sentencing hearing.

If the court determines that the sentence bargain is not in the interest of justice, the defendant will have the opportunity to proceed to trial. If the court rejects a plea bargain, the prosecutor and defense may attempt to negotiate a new plea deal that the court will find acceptable.

How to Make Sure that a Plea Agreement is Followed

In order to ensure that a plea agreement is honored, a defendant may:

  • Enter into a written plea agreement, signed by the prosecutor and defendant, that outlines all of the agreed terms and conditions of the plea deal; or
  • Describe all terms of the plea agreement on the record in court, before entering a guilty plea pursuant to the agreement.

When a plea agreement is reduced to writing it is usually sufficient to reference the written plea agreement on the record, rather than reciting all of the terms of the agreement into the record.

At sentencing, the trial court will ask the defendant about any promises that were made to the defendant in exchange for a guilty plea, other than the terms of any plea bargain as stated on the record. If the defendant denies any additional promises, the defendant is unlikely to be able to enforce any terms of the plea agreement other than those that were stated on the record.

On rare occasions the defense and prosecutor may agree not to state the terms of a plea bargain on the record. For example, the prosecutor may not want to look soft on crime by having offered a favorable deal to a defendant in a high profile case, or a judge who does not like to engage in sentence bargaining may prefer that a sentence bargain not be reflected on the record.

A defendant should not assume that there is a valid reason to keep a plea bargain off of the record, and absent a very clear understanding of the reasons for doing so should assume that any terms not recited on the record will not later be enforceable if the court or prosecutor does not follow through as promised. A defendant should make sure that the entire plea bargain is made part of the record, and insist that defense counsel provide a clear explanation of any departure from that practice.

What Happens If The Prosecutor Violates a Plea Agreement

When a prosecutor and defendant enter into a valid plea agreement, and the defendant abides by that agreement but the prosecutor does not, the defendant may seek enforcement of the agreement:

  • If a prosecutor won't proceed with an agreed plea bargain, a defendant may seek a court order compelling the prosecutor to fulfill the terms of the plea agreement.
  • If the prosecutor's violation of the plea agreement occurs after the defendant has entered a guilty plea, the defendant may petition the court to allow the withdrawal of that plea.

For example, a prosecutor may have agreed that if the defendant pleads guilty, charges from another criminal matter would not be filed. If the prosecutor files those charges despite the defendant's having entered the agreed guilty plea, the defendant may move to set aside the plea or may petition for dismissal of the new charge based upon the terms of the plea agreement.

Sometimes the terms of a plea bargain will be subjective. For example, a defendant may agree to cooperate with the police and prosecutor in the investigation of another criminal matter, or may agree to testify against a co-defendant. A prosecutor may later argue that the defendant's cooperation was inadequate. To avoid this possibility, it is important to try to keep the terms of a plea agreement as objective as possible, or to try to negotiate objective measures of cooperation so as to limit the prosecutor from trying to void the deal.

Does Plea Bargaining Advance the Interest of Justice

Plea bargaining is not without controversy. Some people argue that the process of plea bargaining encourages prosecutors to file more serious charges against a defendant in order to coerce a guilty plea to a lesser charge. An innocent defendant who faces a very long prison term may be tempted to accept a plea bargain that guarantees a short period of incarceration or a sentence of probation.

Despite the risks, plea bargaining offers considerable advantages to both the prosecution and defense:

  • Cost Savings: Both the defendant and prosecutor avoid the expense of trial. For a defendant who has retained a private lawyer, that cost may be substantial.

  • Certainty of Outcome: The defendant does not have to worry about going to trial or the conviction charges that might result from a trial, or the possibility of a more severe sentence after conviction at trial.

  • Judicial Economy: The court system is spared the burden of trying the case, freeing up the judge's time and the court's resources for other cases.

Defendants in criminal cases are usually very concerned with whether or not they will be sentenced to a term of incarceration. Plea bargaining is often the best means for a defendant to minimize the chance of incarceration, or to obtain the shortest available jail or prison sentence. Similarly, if every criminal case went to trial, the criminal justice would be overburdened and criminal courts would be unable to handle the case load. Plea bargaining helps keep case loads at a manageable level.

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.