A plea deal or plea bargain occurs when the prosecution and defense negotiate and agree upon the appropriate resolution of a criminal case. For more information about plea bargaining, see How Plea Bargains Get Made.
There are several different types of plea bargains:
- Charge bargaining. The defendant pleads guilty or "no contest" to a crime less serious than the original charge.
- Count bargaining. The defendant pleads to only some of the original charges in a case in which the prosecution alleged multiple crimes.
- Fact bargaining. The defendant pleads in exchange for the prosecutor’s stipulation that certain facts led to the conviction. (Certain facts, like the weight of drugs found on the defendant, affect how the judge will apply sentencing guidelines.)
- Sentence bargaining. The defendant takes a guilty or no contest plea after attorneys for both sides have agreed what sentence the prosecution will recommend.
However, none of these plea agreements are binding until the parties present them to a judge who approves them.
Presenting the Plea to the Judge
To evaluate a proposed plea bargain, the judge must know all the terms of the deal, including any future conditions or unusual aspects. For example, if Donnie Defendant is offered a lighter sentence in return for future testimony against a codefendant, the parties must make this condition clear to the judge when presenting the terms of the plea. Similarly, the parties would have to inform the judge if there is anything unusual in how he is to complete his sentence—for example, if the terms of the plea require him to perform 600 hours of community service, but only on weekends.
Judicial Discretion in Evaluating Plea Deals
A judge has discretion to decide whether to accept or reject a plea agreement. To make that decision, the judge evaluates whether the punishment is appropriate in light of the seriousness of the charges, the defendant’s character, and the defendant’s prior criminal record.
Other factors to consider include:
- the underlying facts of the case (or factual basis for the plea)
- the interests of the victim (although a court can accept or reject a plea agreement without the victim’s approval), and
- the interests of the general public.
Deciding on the Plea
While plea procedure varies from judge to judge and jurisdiction to jurisdiction, judges must always decide whether to accept the plea terms before the defendant actually enters the plea.
When judges decide on a proposed plea bargain, they can:
- accept the terms of the plea agreement
- reject the terms of the agreement
- defer the decision until considering the presentence report
- accept the plea agreement on certain terms, but reject the negotiated sentence (called a partially negotiated plea in some jurisdictions), or
- suggest that the defendant plead without a negotiated agreement (if, for example, the judge is inclined to give a lighter sentence than the plea deal calls for).
Different rules apply to the different types of plea bargains.
Charge bargaining. A judge can reject a plea to a lesser count than what was charged but is generally required to support the rejection with the facts and appropriate law.
Count bargaining. Count bargaining is somewhat outside of the judge’s discretion: The prosecution can independently dismiss some of the underlying charges so that the judge can’t even consider them.
Fact bargaining. In jurisdictions that have mandatory sentencing guidelines, the agreed-upon facts constrain the potential sentence to a certain extent. So, fact bargaining takes the determination of a sentence somewhat out of the court’s discretion. (However, a judge who determines that the prosecution has fudged the facts as part of a bargain can reject the plea altogether.)
Sentence bargaining. In some jurisdictions, if the prosecution and the defendant agree to a sentence and the judge accepts the negotiated plea, that judge must accept the entire agreement, including the agreed-upon sentence. In other jurisdictions, even when accepting a plea agreement, the judge isn't required to accept the sentencing recommendation. Some jurisdictions require that the accused be given the opportunity to withdraw the plea if the judge doesn’t follow the sentencing recommendation.
When judges refuse a proposed plea bargain, they must follow their jurisdiction’s procedure, which usually requires that they identify on the record the reasons for not accepting the deal.
If the Judge Accepts the Plea
Once the judge accepts the defendant’s guilty or no contest plea and enters a conviction, that judge can’t later overturn the plea agreement. However, when the parties agree upon a negotiated plea that requires that the defendant perform certain conditions, the court retains jurisdiction until the express conditions are satisfied. If the defendant doesn’t satisfy the conditions, the judge can reject the plea and resentence the defendant. An example is a defendant who, in order to receive community service instead of jail time, agreed to but failed to complete the assigned service.