Plea Bargain Process – How does it work?

The plea bargain process is a negotiation between the prosecutor and the defendant, usually through his or her criminal defense attorney. Either side can initiate it. The process usually begins at the arraignment, and a deal can be struck any time before a jury verdict. Many plea bargains have to be approved by the judge.

What is the plea bargain process?

The plea bargain process is an ongoing negotiation between the prosecution and the defense. The goal of the process is to come to a mutually agreeable resolution for the criminal charges without going to trial.

Either side can initiate the process. Plea deal discussions can begin as early as the arraignment, when the defendant is told of the charges he or she is facing. It can last right up to the trial. A plea deal can even be struck during trial, so long as the jury has not returned a verdict, yet.

Many plea bargains are struck at the preliminary hearing, after the prosecutor and defense attorney have had an opportunity to develop a record of the case. By gathering evidence and interviewing witnesses, each side will get a better understanding of how strong their case is. This will inform the plea bargain negotiation.

If the prosecutor has a weak case, and the criminal defense lawyer knows it, law enforcement may make a generous plea offer in order to avoid trial and a potential acquittal. The prosecutor may even decide to drop the charges, altogether. If the district attorney thinks that he or she has a very strong case, they may refuse to offer a plea deal, at all. However, they are generally open to an offer in order to save the time of going through with a criminal trial.

This negotiation process can take place over the phone, in person, or even via email. In some cases, it can happen quickly: The prosecutor can make an offer, the defense attorney can give the defendant legal advice on what to do, and the defendant can accept the deal, all in the span of an hour. In other cases, especially serious charges for felony offenses, the process can take much longer. Multiple plea offers may be made over the course of the case to resolve these serious offenses.

Once a plea bargain has been made, it often has to be approved by the judge in the criminal court. The judge will make sure that the defendant is entering the agreement knowingly and voluntarily. If the judge is satisfied, he or she will approve the terms of the deal.

What is a plea agreement?

A plea agreement is a binding agreement between law enforcement and a criminal defendant. The defendant agrees to plead guilty to the charges in the deal, often in exchange for a reduction in their severity. The vast majority of criminal charges are resolved through plea agreements.

In taking a plea deal, defendants relinquish their constitutional right to a jury trial. When the defendant pleads guilty, he or she is convicted for the offenses in the deal. Their case moves straight to the sentencing hearing.

This can be in the defendant’s interests, if the prosecutor has a strong case and the plea offer is good. However, if the defendant has a strong defense to the charge, pleading guilty would mean that he or she would never get to use it.

According to the Department of Justice, around 95 percent of criminal cases end with a plea bargain.¹

What are the different types of plea deals in criminal cases?

There are 4 common forms of plea deals:

1. count bargaining,
2. sentence bargaining,
3. charge bargaining, and
4. fact bargaining.

Defendants facing multiple criminal counts can engage in count bargaining. This negotiated plea deal with the prosecutor would mean that the defendant would plead guilty to one or more of the counts, in order to have the others dropped.

Sentence bargaining is when the defendant pleads guilty to the original charge, in exchange for the prosecutor’s recommendation of a lighter sentence. This is especially common for low-level offenses, like misdemeanors, that are eligible for diversion. The defendant pleads guilty to the offense and the prosecutor recommends the diversion program for the sentence. If the defendant completes the program, the charges can be dropped or dismissed, depending on the program.

Charge bargaining is a plea negotiation over the type of charges filed. It is probably the most well-known type of plea bargaining in the criminal justice system. In it, the defendant agrees to plead guilty, but to a lesser charge. For example, in California, charge bargaining in a case involving a first offense of driving under the influence (DUI) can lead to a plea deal where the defendant pleads guilty to a “wet” reckless. This lesser offense comes with a more lenient sentence and less jail time. However, a prior criminal conviction for a “wet” reckless on a defendant’s criminal record can increase the penalties of a subsequent DUI.

Fact bargaining generally involves the defendant entering a no contest, or nolo contendere, plea. This type of plea has the same effect of a guilty plea, but the defendant does not admit guilt and the facts of the case are not developed. Even though this plea does not lead to a reduced sentence, defendants may want to do this in order to protect their reputation, or in preparation for a civil lawsuit. However, the criminal law in some jurisdictions do not allow for no contest pleas.