By Mark A. Friese

Fifty years ago, twenty percent of criminal cases went to trial. Estimates today show ninety to ninety-five percent of state court criminal cases are resolved through a process called “plea bargaining.” In federal criminal cases, ninety-seven percent end with a plea of guilty. These startling numbers underscore the reality: certainty in the outcome and avoiding a harsher penalty following trial provide significant incentive to “bargain.”

However, the term “bargain” is misleading. Moreover, there are significant dangers.

Plea bargains are generally classified as “charge bargains” or “sentence bargains.” In a charge bargain, the prosecutor will agree to amend or dismiss certain charges in exchange for a defendant’s plea of guilty. In sentence bargains, the prosecutor will agree to a particular sentence, or in most cases, agree to recommend a particular sentence to the court.

The term “bargain” is misleading.

  • A person pleading guilty must waive their constitutional rights to trial, to remain silent, and to compel and cross-examine witnesses.
  • Some people feel pressured to admit guilt even when not guilty.
  • In many cases, a “bargain” is simply an agreement to plead guilty, letting a judge impose sentence.
  • Defendants have little bargaining power. Mandatory sentencing laws provide prosecutors substantial leverage, and defendants are routinely forced to plead guilty to avoid onerous mandatory sentences.

There are significant dangers of plea bargains.

  • Except in instances of dismissal or pretrial diversions, most plea bargains require a plea of guilty. With very few exceptions, by pleading guilty, a defendant waives virtually all constitutional rights and cannot appeal.
  • Most plea agreements do not require the sentencing court to impose the disposition requested by the parties. A defendant can seek a “binding plea agreement.” If successful, the sentencing court must follow the agreement. If not, the defendant can withdraw the guilty plea and proceed to trial. In practice, in the overwhelming majority of cases, plea agreements are not binding. Instead, the parties recommend a particular sentence, and the court is free to sentence as it sees fit. In these cases, if the court exceeds the sentencing recommendation, the defendant is stuck with the result and without a remedy.
  • Plea bargains routinely fail to account for the reality of collateral consequences. (See blog regarding collateral consequences: /blog/2018/12/collateral-consequences-of-a-criminal-conviction.shtml.) Prosecutors and courts are routinely familiar with direct consequences of a criminal conviction, but they have little experience or involvement with the indirect consequences. Many defendants plead guilty, only to experience later all sorts of consequences which were neither discussed nor anticipated.

Plea bargains are useful, and often beneficial. They save time, resources, and often provide assurances and certainty. However, plea bargains can be dangerous. To avoid the pitfalls and unintended consequences of a plea bargain, consult with a lawyer who possesses expertise in criminal matters.


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