plea bargain

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A plea bargain, also known as “negotiating a plea,” is an agreement between the prosecution and the defendant where the defendant agrees to plead guilty to the charges against them. A plea is a criminal law term referring to the accused individual’s formal responses to the alleged charges, which could be “guilty,” “not guilty,” and “no contest.” 

In exchange for the self-conviction, the defendant is usually offered lesser criminal charges, such as reducing the number of charges (if the defendant is charged with more than one charge or count), years reduced from prison sentencing, or dropping a more severe charge to a lesser one (for example, dropping from a First-Degree Murder charge to a lower degree homicide charge). The defendant may not receive a reduction in charges, but the prosecution may offer to recommend a more lenient sentencing to the judge in return.

The defendant can avoid a costly and timely trial and the risk of a harsher punishment, while the prosecution also saves the time and cost of going into a full trial. Sometimes, the defendant must go beyond merely pleading guilty. For instance, the prosecution may require the defendant testify against other defendants as the condition for plea bargaining. Sometimes, the jurors fail to reach a unanimous verdict in a jury trial, resulting in a hung jury situation, ultimately promoting both sides to get into a plea deal. If the defendant pleads guilty, the court prepares for the sentencing hearing without a trial. A defendant is only allowed to plead guilty as part of plea bargaining if the defendant has committed the alleged crime and is willing to openly admit the commission of the alleged crime before the judge in an open court. By pleading guilty in front of the judge, the defendant agrees to the commission of the alleged crime and thus agrees to be subject to sentencing from the judge. However, a possible drawback for defendants to consider when pleading guilty is that it will leave them with a permanent criminal record.

The Role of Judges

In most jurisdictions, the judge plays only a limited role in a plea bargain. For federal judges, the judge is, in a sense, unaffected by plea bargaining because they have the final authority over the sentencing decision regardless of the terms of the plea deal or the recommendation of the prosecutor. Also, federal judges cannot be directly involved in a plea bargain negotiation. However, some jurisdictions do allow the judge to work out a plea deal with the prosecution and the defendant. Most plea bargains must receive approval from the court, but in some cases, the prosecutor may drop the more serious charges for lesser charges without the court’s approval.

Controversy of Plea Bargains

The concept of a plea bargain does face a lot of resistance. Some argue that plea bargains allow defendants to avoid or lessen the consequences of their criminal behavior. Others oppose plea bargains because it could be unfair, forcing defendants to settle as an agreement, possibly violating their constitutional rights. Those who oppose plea bargains based on the constitutional rights argument point out that the defendants must waive their rights to a jury trial, against self-incrimination, and confront witnesses laid out in the 5th and 6th Amendments

Many criminal prosecutions within the United States judicial system end with a plea bargain before reaching a full jury trial. A plea bargain prevents the overriding of cases within the courts, which in turn allows prosecutors and judges to spend their time and resources on more controversial cases. According to the Department of Justice’s Bureau of Justice Assistance, 90-95% of all criminal cases result in a plea bargain

Violating a Plea Bargain

Courts treat plea bargains as contracts between prosecutors and defendants. A defendant violating a plea bargain is akin to a breach of contract, which will result in the prosecutor no longer being bound by their obligation in the plea deal. Similarly, the defendant may seek relief from the judge if the prosecution reneges on the plea bargain deal. In this instance, the judge may force the prosecutor to abide by the original plea bargain deal or provide some other type of remedy to the defendant.

Alternative to Plea Bargains

An alternative to a plea bargain is a diversion program. Generally, diversion programs grant the defendant a chance to get probation without going through a full trial for a lesser serious criminal act. The court will expunge the criminal act from records if the defendant completes the terms of the agreed probation program.

For more on plea bargains, see this Harvard Law Review article, this Vanderbilt Law Review article, this Texas Law Review response, and this Columbia Law Review article.

See also: This resource on collateral consequences, Brady v. United States (1970), United States v. Hodge (2005).

[Last updated in January of 2024 by the Wex Definitions Team]