Over 90% of criminal cases are resolved via plea bargaining. The practice has become widespread due to its many benefits to defendants, prosecutors, and the court system. However, each decision must be carefully considered because a plea bargain usually involves an admission of guilt to a crime and always involves giving up important constitutional rights. Below is an overview of plea bargains to help you have an informed discussion with your criminal defense attorney.

When must a plea be entered?

An initial plea must be entered at arraignment. An arraignment is a defendant’s first court appearance where charges are formally announced. For minor offenses, a plea bargain may be made just prior to or during the arraignment. However, in most cases, a defendant will enter an initial plea of not guilty to all charges with the understanding that bargaining may occur at a later time.

When can a plea bargain be made?

A plea bargain can legally be made at any time from arraignment until the jury returns a verdict. Many prosecutors have policies that either end negotiations at a set time, such as a week before trial, or set higher requirements for offers made after a certain time, such as after indictment, the defendant must plead guilty to the top count.

What can be bargained for in a plea bargain?

Plea bargaining can involve negotiation over the charges, sentencing, or specific facts. Fact bargaining comes into play mostly in financial cases where restitution or civil suits are a likely possibility. Any bargains must be legally supported by the evidence. For example, a defendant charged with assault might be able to plead guilty to a lesser offense such as disorderly conduct, but not to a completely unrelated offense such as shoplifting.

What are the benefits of a plea bargain?

By entering into a plea bargain, a defendant gains certainty as to the outcome of the case. This could include avoiding jail time, a felony, or a specific charge that would have job consequences. In addition, a resolution is reached quickly and the defendant can move on with their life rather than having the case hanging over their head for months or years.

What does a defendant give up by entering into a plea bargain?

A defendant gives up a number of rights including the right to a trial by jury, the right to confront witnesses against them, the right to testify in their own defense, and the right to have the prosecutor prove the charges beyond a reasonable doubt. Many plea bargains also contain a provision that the defendant cannot appeal any aspect of the case.

Is a defendant entitled to a plea bargain?

A defendant is not entitled to a plea bargain. However, offers will be made and bargaining is expected in most cases. Plea bargains are generally only not offered for the most serious offenses such as heinous murders or violent robberies. Other violent offenders and repeat offenders will also be unlikely to receive a very favorable offer.

Does a judge have to approve a plea bargain?

A judge must approve any plea bargain regardless of any agreement between the prosecution and defense. As a practical matter, judges will accept most offers. However, a judge may refuse a plea where serious offenses were charged or the judge feels that the bargain is not proportionate to the outcome in similar cases.

Can a judge offer a plea bargain without the prosecutor’s consent?

Judges have heavy influence in the plea bargaining process, but cannot reduce charges backed by probable cause without the consent of the prosecutor. If the prosecutor does not wish to move on the charges filed, the judge can still promise a specific sentence if the defendant pleads guilty. In that case, the defendant would need to plead guilty to each and every offense in the complaint or indictment.

Can a defendant plead guilty if they do not believe they are guilty?

Defendants are typically required to swear under oath that they did in fact commit the crimes that they are pleading guilty to before a plea is accepted. A defendant who does not believe they are guilty has the option of entering an Alford plea. In an Alford plea, a defendant does not admit guilt, but says they feel the risk of being convicted and suffering the consequences that follow outweighs the benefit of contesting the charges.

Is a plea bargain final?

Plea bargains are designed to be final. It is understood that new evidence may surface after a deal is entered, and this risk is considered to be accounted for in the bargaining process. Pleas can only be withdrawn in rare circumstances such as coercion or ineffective assistance of counsel. However, before a judge accepts a plea, they question the defendant to ensure that a plea is knowingly and voluntarily made. This makes the burden to withdraw a plea very high.

Why do prosecutors offer plea bargains?

In theory, a guilty plea is an acceptance of responsibility for a crime that should be rewarded. Further, a guilty plea removes the risk that the prosecutor will be unable to prove any of the charges to the jury and the defendant will walk free. Finally, the criminal justice system is greatly overwhelmed and would collapse if the majority of cases weren’t resolved via plea bargaining.

What is a no contest plea?

A no contest plea means that a defendant does not contest the charges against them. For the purposes of the criminal justice system, it is the same as a guilty plea. However, if a crime victim later attempted to sue a defendant in civil court, they would not be able to have a no contest plea entered into evidence as an admission of guilt. In addition, a no contest plea gives a defendant more leeway if employers ask them to explain criminal charges or convictions.

Who decides whether to enter a plea?

A defendant has the absolute, final decision regarding what plea to enter to any charges. An attorney cannot force a defendant to enter a plea under any circumstances, and a judge will explain this to a defendant and ask if a plea decision is their own choice. However, a defense attorney will of course be in the best position to advise a defendant if a plea bargain is beneficial to them and will have heavy influence in the defendant’s decision making process.