In legal thrillers and television courtroom dramas, criminal cases end with a public trial in front of a judge or jury. In the real world, experts estimate that 90 to 95 percent of both federal and state court cases end in plea bargains.
A plea bargain is an agreement between the defendant and the prosecution to resolve a criminal case without going to trial. Most commonly, the defendant 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:
When prosecutors file charges against a defendant, they have concluded that they have sufficient 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.
The primary reason prosecutors plea bargain is simply that it’s a guaranteed conviction. By contrast, the outcome of a criminal trial is 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.
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.
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.
Prosecutors sometimes plea bargain in order 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.
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.
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.
Criminal defendants and their attorneys undertake the same risk analysis that prosecutors use, but from the other side. How much evidence does the prosecutor have, and how likely is it that a judge or jury will convict? Even defendants who think they have a strong defense might not be willing to take a chance 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 cutting their losses.
The bail system works by taking money from defendants charged with crimes in exchange for their release. People who cannot afford bail (and who cannot gain release on their mere promise to appear) stay in jail until their trial. According to a 2018 brief by the Pew Charitable Trust, two-thirds of the nearly 750,000 people in jail in the United States are awaiting trial and have not been convicted of a crime.
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.
In 2018, California became the first state to end cash bail. Under the new law, a defendant will be evaluated on the basis of risk to public safety and the likelihood of appearing in court, rather than ability to pay bail. The new law has been put on hold until November 2020, when California voters will decide on an initiative, backed by the bail bond industry, to overturn it.
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. 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 onerous than the criminal sentence itself. For example, even low-level marijuana offenses, which result in minimal criminal consequences in most states, can lead to deportation for non-citizens.
In most jurisdictions, plea bargaining can take place any time after the defendant has been charged, up to and including the morning of trial (the defendant can even plead mid-trial). The prosecutor and defense attorney typically discuss the case on the phone, over email, or in the courthouse corridors, and 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. Occasionally, defendants enter a “no contest” (nolo contendere) plea, in which they receive the same sentence they would get if they were pleading guilty. (A no contest plea allows the defendant to be punished without admitting guilt, and it might avoid some collateral consequences.)
The judge at the plea hearing must approve the plea bargain. Judges usually approve reasonable bargains. The court informs defendants of the rights they are giving up by deciding not to go to trial, and the judge should explain the consequences of the plea (this is particularly important when defendants face immigration consequences). Sentencing might happen on the spot or be scheduled later, following a probation department report.
Now and then, defendants have second thoughts and wish to withdraw their pleas, most commonly claiming that they did not understand or were not properly advised of the consequences of the plea. Mere buyer’s remorse is not good grounds for undoing plea bargains. A judge can withdraw a 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.
The decision 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.
