Plea Bargaining

Plea bargaining refers to the practice, common in U.S. courts, wherein a criminal defendant agrees to plead guilty in exchange for leniency by the prosecutor or district attorney. According to the Bureau of Justice Statistics, 95 percent of criminal convictions in U.S. courts are obtained through guilty pleas. Although it is not clear what percentage of guilty pleas entail an explicit “bargain” (i.e., defendants may plead guilty without any formal agreement), it is likely that most guilty pleas include some concession on the part of the prosecutor, or at least the assurance that the judge will be more lenient.

Three types of plea bargains are most common. Charge bargaining refers to the defendant pleading guilty to a less serious offense or to fewer charges than would be brought if the case went to trial. For example, a charge of first degree murder may be dismissed if the defendant agrees to plead guilty to second degree murder, or a charge of delivering narcotics might be reduced to possession of narcotics. Alternately, a prosecutor might dismiss several less serious charges if the defendant pleads guilty to the most serious charge. In sentence bargaining, the defendant pleads guilty in exchange for the prosecutor recommending a less severe sentence than would be likely to follow a trial conviction. Finally, fact bargaining entails negotiating over “facts” that can increase the sentence, such as the quantity of drugs involved, the possession of a weapon during the crime, or that the conviction constitutes a “third strike.” Fact bargaining is especially important when the crime is subject to a “mandatory minimum” sentence.

Although judges are not required to comply with prosecutors' recommendations in plea agreements, they typically do. Research also finds consistently that judges sentence defendants to jail or prison less often, and typically order shorter terms of incarceration, if defendants plead guilty. This “plea reward” (or “trial penalty”) is found even among defendants convicted of similar crimes and having similar criminal histories. Many studies find the type of plea entered is one of the strongest predictors of sentence severity, after the seriousness of the crime and the defendant's criminal history.