How Plea Bargains Get Made

In a typical plea bargain, the defense lawyer and prosecutor confer, and one or the other proposes a deal. The negotiations can be lengthy and conducted only after both parties have had a chance to research and investigate the case. Or, they can be minute-long exchanges in the courthouse hallway.

Who Is Involved in a Plea Bargain?

The main players in the plea bargaining process are the prosecuting attorney and the defense attorney. The defense attorney must communicate any plea offers to their client—the criminal defendant—who will make the final decision.

Prosecutor. The prosecutor represents the government. Their role involves enforcing the laws, doing justice, and promoting public safety. Prosecutors are often motivated by the efficiency of plea deals and a guaranteed conviction. Trials take time and cost money, and there's no guarantee 12 people can agree on a guilty verdict. When making a plea offer, they need to consider the victim, the public, and the risk of going to trial.

Defense attorney. The defense attorney represents the defendant. Their role is to zealously defend their client, protect their rights, and seek the best possible outcome. In their negotiations, defense attorneys must evaluate the strength of the prosecution's case and the evidence, as well as the strength of their defense. Experienced defense attorneys will likely have some idea of how a judge would sentence the defendant if it came down to a trial.

Who Decides Whether to Accept the Plea?

The decision about whether to accept the plea bargain ultimately rests with the client. For practical purposes, however, defense counsel often urges defendants to accept deals, convincing them they'll get a much harsher sentence if they go to trial (and they're often right). And defendants tend to take the deals that their attorneys recommend.

What Is the Judge's Role in a Plea Bargain?

Much of the time, plea bargaining negotiations take place privately between the defense lawyer and prosecutor, outside of court. The judge has no formal role until the plea is offered in open court. In some courts, however, the judge is actively involved in pushing both sides to negotiate, even facilitating negotiations in the judge's chambers (office). On occasion, the judge will provide guidance to the defense and prosecutor by indicating what sort of sentence would be acceptable.

Charge Bargaining

It is up to the judge to impose a sentence in a criminal case. On the other hand, it is up to the prosecutor to decide what charges to bring; the judge has no authority in that sphere except to dismiss a charge that the judge feels is wrong. This means that a prosecutor may agree to change the charges or even drop some charges in exchange for the defendant's plea, and the judge can't stop it. However, if the plea bargain involves the type of sentence to be imposed by the judge, the prosecutor cannot guarantee the result without the judge's agreement (see below).

Sentence Bargaining

In many courts, prosecutors agree to recommend the bargained-for sentence without obtaining any explicit agreement beforehand from the judge. But the prosecutors know from past experience and the judge's reputation whether the judge can be counted on, as many can, to rubber-stamp the prosecutor's recommendation. If the judge rebels or simply doesn't follow the track record, and seeks to impose a harsher sentence than the one the defendant was led to expect, the defendant is usually allowed to withdraw the guilty plea. (If the case ultimately goes to trial, the jury will never find out that the defendant had sought to plead guilty.) But if the prosecutor has made it clear that the judge might not accept the recommendation, and the defendant pleads guilty anyway, the defendant may be stuck with the judge's sentence. In other words, sometimes bargaining for the prosecutor's recommendation will produce a sure result; other times, it simply means that the defendant can test what the judge is willing to do; and still other times, it guarantees nothing at all and risks a harsh sentence.

Parts of this article were excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.