A plea bargain is an agreement in a criminal case between a defendant and the prosecution in which the defendant agrees to plead guilty or no contest to a charge. In exchange for the guilty plea, the prosecution agrees to one or more of a few outcomes:

  1. The prosecutor may drop additional charges in exchange for the guilty plea;
  2. The prosecutor may reduce a charge to a less serious offense in exchange for the guilty plea; or
  3. The prosecutor may recommend a specific sentence to the judge in exchange for the guilty plea.

Even though both the defendant and the prosecution may come to an agreement in a plea bargain, the agreement is usually up to the discretion of the judge, who must review the agreement and make the final decision on it.

Are Plea Bargains Common?

Plea bargains are actually very common in our court system—about 90% of criminal cases actually end in plea bargaining. Due to the volume of cases that the courts have to deal with, plea bargains actually help keep things moving.

They are faster than a full trial, and provide both sides of the case with a measure of control over the outcome. The outcome of a trial may not be predictable, even after days or weeks of work on the matter. However, both sides of the case have a good idea of the outcome in a plea bargain.

How and When is a Plea Bargain Negotiated?

A plea bargain can be negotiated at any time during the criminal justice process. Most are negotiated between the filing of charges and the commencement of trial, because part of the idea of a plea bargain is to avoid an unnecessary trial.

However, if a trial ends in a hung jury, where the jurors are split in their decision and cannot reach a unanimous verdict, the parties can negotiate a plea bargain instead of going through with the time and expense of a second trial.

If a defendant accepts a plea bargain that is ultimately rejected by the judge, and the case does proceed to trial, the details of the plea bargain are not disclosed to the jury. The jury does not even know that a plea bargain was considered.

What is Judicial Discretion?

While the defendant and prosecution negotiate the plea bargain, ultimately the judge has the final say in whether the agreement is approved. When determining whether to accept the proposed agreement, the judge can consider several factors, including (but not limited to):

  • The facts of the case;
  • The seriousness of the charges;
  • The defendant’s character; and/or
  • The defendant’s prior criminal record (if any).

The judge can decide to either accept the plea bargain, reject it, or (in some cases) accept the plea bargain with conditions. For example, if the plea bargain allows the defendant to complete community service instead of jail time, the judge may require that the community service be completed by a certain date. If the defendant does not fulfill the conditions set forth by the judge, the plea bargain may be thrown out.

As with all cases, the judge must follow the rules of the local jurisdiction. It is a good idea to consult an attorney familiar with your local rules if you have any questions regarding judicial discretion in a plea bargain.

How Does a Plea Bargain Affect My Criminal Record?

Accepting a plea bargain ultimately counts as a criminal conviction on your criminal record. Any rights or privileges (such as the right to vote) that you would lose after a conviction at trial, you still lose after accepting a plea bargain.

Ultimately, the decision whether to accept a plea bargain is the defendant’s choice. No one can force you to accept a plea bargain. However, there are several factors that should probably weigh into your decision. If you are a licensed professional who may risk losing your license if you have a felony conviction, you may consider accepting a plea bargain that reduces the charge to a misdemeanor.

It is a good idea to listen to your attorney’s assessment of your chances at trial when you are weighing the decision. If your attorney indicates that you are unlikely to win at trial, you may want to consider agreeing to a plea bargain.

What Happens If The Prosecutor Goes Back on The Plea Bargain?

The basis of a plea bargain is the agreement between the defendant and the prosecution. If a defendant breaks their side of the agreement, it acts just like a breach of contract. The prosecution will not be required to keep to their side of the agreement, and can retain the charges or recommended sentence just as they were before the agreement. 

If the defendant keeps their side of the agreement, but the prosecution does not, the defendant can turn to the judge for relief. The judge may let the defendant withdraw their guilty plea or may enforce the prosecutor’s side of the agreement.

Should I Consult an Attorney for a Plea Bargain?

Deciding whether to accept a plea bargain can be difficult. There are often many different factors to consider in the decision. While the plea bargain may give you less severe penalties than you would if convicted at trial, you may still end up with criminal charges on your record that could affect future job prospects or other life choices.

If you are part of a criminal case or facing criminal charges and are considering a plea bargain, it is in your best interests to consult a criminal defense attorney who can help give you a professional view of your chances at trial and the pros and cons of the bargain. A criminal defense attorney can also help guide you through the process so that you can get the best possible outcome for your circumstances.