Plea bargaining refers to the negotiations between prosecutors and defense lawyers on how to resolve criminal charges. Plea bargaining results in defendants’ pleading guilty or nolo contendere (a plea in which the defendant does not contest the charges, but which carries the same legal consequences as a guilty plea) in return for a stated sentence, agreement not to request more than a certain sentence, or dropped charges. Judges are sometimes part of the negotiation process as well. The vast majority of cases are settled by plea bargaining, which can begin as soon as charges are filed and continue right up to the jury’s verdict.
Plea Bargains from the Defendant’s and Prosecutor’s View: Pros
A bargain has the obvious advantage of certainty and the reduction of risk. The defendant avoids the risk that a trial will uncover evidence that is even more damning (resulting in the possibility of added, harsher charges); that the jury will find him guilty; and that the judge will “throw the book at him.”
From the prosecutor’s point of view, a settled case will clear his trial calendar, leaving room for presumably more serious cases, and it too removes the risk that the defendant will convince the jury to acquit or even to hang. Settled cases result in happy judges, too, because their case load is lessened—prosecutors always benefit when they make judges happy.
Plea Bargains from the Defendant’s and Prosecutor’s View: Cons
A defendant who pleads guilty must admit guilt (see below), which will be impossible for the defendant who believes he’s guilty but is willing to take the conviction and sentence in order to avoid harsher consequences or even just to get on with his life. This person loses the chance to convince the trier of fact, be it a judge or jury, of his lack of guilt. The most seasoned trial attorneys, be they prosecutors or defense attorneys, will never tell you that a case is a slam-dunk for conviction. Juries are unpredictable, as are witnesses.
Prosecutors lose a bit too, when they bargain a case. Victims and the public may be angered at a settlement for a crime they think deserves the full force of the prosecutor’s efforts. And when the deal does not include a specified, agree-upon sentence (see below), the prosecutor may end up unpleasantly surprised when the judge hands down a lenient sentence.
Statutory Limitations on Plea Bargaining
Not every case can be bargained “down.” In some instances, where the statute provides for a mandatory minimum sentence, the prosecutor cannot agree to a lighter sentence. For example, statutes proscribing driving under the influence of drugs or alcohol often specify that increased penalties will apply for repeat offenders; and certain assault crimes carry an enhanced sentence when the victim was a child or other protected person. In these situations, the prosecutor may be able to drop the charges (to reckless driving or a lesser assault), but could not promise a lighter sentence than the one specified in the original charge.
Constitutional Limitations on Plea Bargaining
Plea bargaining that attempts to nail down a specific sentence must involve a willing judge for the bargain to be a deal that the defendant can rely on. That’s because the sentencing function is uniquely judicial—no prosecutor can tell the judge, this is what the defense and I have agreed will be the sentence. Sometimes, the bargaining will involve the judge from the outset, and when that happens and the judge signs-off on the deal, the sentence is set. But often the deal will involve only a promise that the prosecutor will not ask for a sentence greater than a certain amount. In these cases, there’s no guarantee that the judge will follow this recommendation. To protect themselves in these situations, defendants often build into the plea the option to withdraw the plea if the judge indicates that he or she will impose a sentence other than the one recommended by the prosecutor.
Defendants who plead guilty in exchange for a lesser charge or sentence must still appear before a judge and admit guilt. Judges will conduct an often lengthy “voir dire” (oral examination) of the defendant, asking whether the defendant understands that he or she is giving up the right to trial, to testify, and to call witnesses. The voir dire includes asking defendants if they understand every element of the offense to which they intend to plea, and if they admit each such element. Judges will not accept a guilty plea unless a genuine “Yes” follows each of the judge’s questions. Judges conduct these examinations in order to make sure that defendants are well aware of what they are giving up—and in order to ensure that later, a defendant cannot claim that he plead in ignorance of the trial rights that were never explained to him.
Because a plea won’t “go down” unless the defendant passes the judge’s voir dire, attorneys typically spend a lot of time preparing their clients for this examination. Defendants who are pleading guilty out of expediency, but who resist admitting actual guilt, will have a hard time successfully pleading before a rigorous judge.