Rejecting a Plea Deal: Will My Sentence At Trial Be Harsher?

If you're charged with a crime, you will likely be offered a plea deal at some point. According to the American Bar Association (ABA), nearly all criminal cases—98% of federal and 95% of state—end in plea bargains.

Deciding whether to accept a plea deal is a difficult decision. A plea bargain is a compromise: Both sides typically get some benefit from the bargain, but at what cost? And what happens to defendants who don't play ball and decide to assert their right to a jury trial? Is there a penalty for going to trial?

What Is a Plea Bargain?

A plea bargain is an agreement between the defendant and the prosecutor to resolve a criminal case without going to trial. In a plea bargain, a defendant agrees to plead guilty or no contest in exchange for leniency from the prosecutor, such as a lesser sentence or reduced charges.

Plea bargains can happen at any stage in the proceedings from arraignment to preliminary hearing to the eve (or sometimes even the middle) of trial. A judge must accept or reject a plea bargain.

Why Are Plea Bargains So Common?

Plea bargains keep the criminal justice system running. Federal and state courts simply don't have the resources to try every criminal case that is filed by prosecutors (and certainly not within the speedy trial timeframe guaranteed by the U.S. Constitution).

In theory, both sides benefit from plea bargains. Prosecutors get a guaranteed conviction while saving time and resources. Defendants may want to avoid harsher punishment, minimize potential collateral consequences, or avoid lengthy pretrial detention if they can't afford bail.

Learn more about the pros and cons of plea bargaining.

Reasons to Reject a Plea Bargain

Plea bargains are so common that some legal experts argue that prosecutors are coercing plea deals. Still, a small percentage of defendants manage to resist the pressure and end up going to trial or having their cases dismissed. According to the Pew Research Center, 2.3% of federal criminal defendants went to trial in 2022, and 8.2% had their cases dismissed.

Before you decide whether to plead or go to trial, it's critical that you talk to an experienced criminal defense lawyer. A lawyer can walk you through your options and the likely consequences of each option. But the ultimate decision is yours. Some reasons why you might want to reject a plea deal include:

• You are innocent. It may seem obvious, but you probably shouldn't plead guilty to a crime you didn't commit. It happens more often than you think. According to the Innocence Project, 18% of known exonerees pleaded guilty to crimes they didn't commit.
• The prosecutor isn't offering you much of a deal. Sometimes a prosecutor will make you an offer you should refuse. If the plea bargain involves a sentence that isn't all that different from what would likely happen if you went to trial and lost, you should think carefully about accepting it.
• The prosecutor may have problems with proof. In a criminal trial, the prosecutor must prove the case beyond a reasonable doubt. If you and your lawyer have reason to believe that the prosecutor will have trouble meeting that burden, you might want to roll the dice on a trial. For example, if you know a witness has moved or has serious credibility issues, you should consider that before accepting a plea deal.
• You want to preserve an issue on appeal. It is fairly common for prosecutors to require defendants to give up (waive) their right to appeal as a condition of the plea bargain. If you want to appeal a judge's ruling on a pre-trial motion, such as a motion to suppress, you'll likely have to negotiate a conditional plea or go to trial and raise the issue on appeal if you're convicted.

If I Reject a Plea Bargain, Will My Sentence After Trial Be Harsher?

According to the National Association of Criminal Defense Lawyers (NACDL), at the federal level, "trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher." Critics of the modern plea system refer to this unjustifiable difference between the sentence offered before trial and the sentence received after trial as the "trial penalty."

Sometimes prosecutors and judges learn new information during a trial that justifies a longer sentence than what was offered before trial. For example, maybe the victim's testimony revealed that the injuries were worse than they seemed in the police report. Or maybe the defendant testified and was caught lying under oath. In these cases, some difference between the plea offer and the sentence after trial makes sense. But when defendants convicted at trial routinely receive much higher sentences than defendants who plead guilty, it discourages people from going to trial. Eliminating the trial penalty is one of the 14 principles adopted by the ABA in 2023 to address problems with the plea-bargaining system.

Before you decide whether to accept or reject a plea bargain, ask your lawyer about the trial penalty. If you don't have a lawyer, get one as soon as possible. A lawyer can't predict the future and tell you exactly what will happen if you go to trial and lose, but you can talk through the realistic risks and benefits of trial.