The Pros and Cons of Plea Bargains for Those Facing Criminal Charges

While more than 90% of criminal cases end with a plea deal, deciding whether to accept one is serious and carries significant consequences. This article explores the potential advantages and disadvantages of accepting a plea bargain to help you understand your options.

Potential Benefits of Plea Bargaining

For a defendant, the main benefit of a plea bargain is receiving a more favorable outcome than what they might face if convicted at trial. Let’s examine some of the benefits of agreeing to a plea deal.

Reduction in Charges (Charge Bargaining)

This is the most common type of plea deal. The prosecutor agrees to drop more serious charges if the defendant pleads guilty to a lesser one. For example, a defendant facing a felony charge might plead guilty to a related misdemeanor.

A lesser charge has several benefits:

• It carries a lighter sentence
• It looks better on a criminal record
• It can help avoid the severe collateral consequences of a felony conviction, which can affect future employment, housing, and even the right to vote, especially in states with “three strikes” laws

For first-time offenders with non-violent offenses, the sentence could be reduced to community service.

Reduced Sentence (Sentence Bargaining)

In some cases, the prosecutor won’t reduce the charge but will agree to recommend a lighter sentence than the maximum allowed. While not always as beneficial as a charge reduction, the difference in jail or prison time can be substantial.

Controlling the Facts (Fact Bargaining)

A less common but still important type of negotiation is “fact bargaining.” In this scenario, a defendant agrees to admit certain facts are true in exchange for the prosecutor not introducing other, potentially more damaging, facts at sentencing.

For example, a defendant might agree that a certain amount of drugs were involved to prevent the prosecutor from presenting evidence of a much larger quantity, which could trigger a mandatory minimum sentence with harsher penalties. This tactic helps control the official narrative presented to the judge and can significantly affect the final sentence.

Certainty vs. Trial Risk

A trial is unpredictable. A jury could find you not guilty or convict you on all charges, leading to the maximum possible sentence. This uncertainty creates immense anxiety. A plea bargain provides a definite outcome, allowing you to know exactly what penalties you’ll face.

Resolving the Case Quickly

The criminal justice process can be slow and expensive. A trial can take months or even years, requiring multiple court appearances and high legal fees. A plea bargain resolves the matter quickly, saving you time, money, and emotional stress.

Avoiding Publicity and Stigma

Certain crimes, like sex offenses or domestic violence, carry a heavy social stigma. A public trial can damage your reputation in the community, regardless of the outcome. A plea bargain can help keep the details of your case more private and may allow you to plead to a less stigmatizing offense.

Potential Disadvantages of Plea Bargaining

Despite the benefits, accepting a plea bargain involves significant trade-offs and risks. It’s important to understand the possible repercussions of admitting guilt, even for a lesser charge.

Waiving Constitutional Rights

By accepting a plea deal, you give up fundamental constitutional rights guaranteed by the Fifth and Sixth Amendments in a trial, including:

• The right to a jury trial: A group of your peers will not hear your case and decide your guilt or innocence
• The right against self-incrimination: You are admitting guilt, which you would not be required to do at trial
• The right to confront witnesses: You give up the opportunity to question the witnesses testifying against you

You’ll be required to admit your guilt in open court.

The Risk for Innocent Defendants

One of the most serious criticisms of the plea bargaining system is that it can pressure innocent people to plead guilty. The risk of a long prison sentence after a trial can be so terrifying that an innocent person may choose to accept a plea for a crime they didn’t commit to ensure a shorter sentence or avoid jail time altogether.

Having a Criminal Record

Even if you plead to a lesser charge, you will still have a criminal conviction on your record. This can create long-term obstacles for employment, professional licenses, and housing opportunities.

No Chance for Appeal

In most cases, accepting a plea bargain means you waive your right to appeal the conviction or sentence. If you are convicted at trial, you generally have the right to have a higher court review your case for legal errors.

The Judge’s Role and Final Approval

Always remember that if you accept a plea bargain, the judge can still deviate from the agreement. Although this seldom happens, it is possible, especially if the plea bargain deviates widely from the statutory guidelines.

The ‘Trial Penalty’: Risking a Harsher Sentence

The “trial penalty” is the often substantial difference between the reduced sentence offered in the prosecutor’s plea agreement and the much harsher sentence a defendant may face after being convicted at trial. According to the National Association of Criminal Defense Attorneys (NACDL), federal prison sentences at trial are three times higher than plea sentences for the same offense. Facing the double whammy of a harsher sentence and no parole, even innocent defendants may opt for the prosecutor’s deal.

A judge can’t penalize a defendant for turning down a plea deal. However, other factors may apply:

• Acceptance of responsibility: A defendant can lower their sentencing level by accepting responsibility for the offense. Part of that is pleading guilty before the prosecution’s case advances to trial preparation. The timing of a refusal or acceptance becomes critical to a trial penalty.
• Loss of reduction: This is not considered a penalty for failing to accept the plea deal. You’re not entitled to it, so it’s not unlawful for a judge to refuse to apply it.

Critics of plea bargaining point fingers at some judges for essentially “rubber-stamping” plea deals to resolve cases faster, and applaud judges who have begun tossing out plea agreements and instead issuing sentences based on a review of the case. Some argue that plea agreements have a high potential for coercion, and it’s up to judges to rein in overzealous prosecutors.

Types of Plea Bargains

Understanding the type of plea you enter is crucial.

• Guilty Plea: You formally admit in court that you committed the crime. This is usually a requirement with a plea deal.
• No-Contest (Nolo Contendere) Plea: You accept the criminal penalty without admitting guilt. While this still results in a conviction, it typically can’t be used as evidence of guilt against you in a related civil lawsuit.
• Alford Plea: You maintain your innocence but plead guilty, acknowledging the prosecution has enough evidence to likely secure a conviction at trial. This results in a guilty plea that can be used against you in a civil case.

Federal courts and most states allow for no-contest and Alford pleas. Others, such as Indiana, Michigan, and New Jersey, have banned them.

Questions To Ask Your Attorney Before Deciding

It’s not a good idea to agree to a plea agreement before you’ve spoken with an attorney. The final decision is yours, but having guidance from an experienced defense attorney can make all the difference. Here are questions to ask an attorney before making a final decision:

• What evidence does the government really have? The prosecutor will always say they have everything they need to convict you. Ask your attorney if that’s really the case, or if they’re just bluffing to get your cooperation.
• Will the government get to use all of it? Your attorney may have motions to suppress evidence in the works, so ask whether any are likely to pan out. Excluding a single piece of evidence may make a big difference.
• How strong are the government’s witnesses? Are they credible and will they help the prosecution’s case, or are they just up there to verify the documentary evidence? Does your attorney have any rebuttal witnesses on tap?
• What kind of sentence am I looking at if I get convicted? Attorneys don’t like to talk about convictions, but you need to know what the criminal justice system has planned for you. What are the upper and lower ends of the sentencing range? If there is a mandatory minimum, how long will you have to wait before parole? Can you get parole or probation?
• What exactly is in the plea deal? You’ll probably have to allocute (admit guilt) in open court, but what other requirements are in the plea deal? What reduced charges are you pleading guilty to? Will there be post-release requirements like a violent offender registry? Where will you be incarcerated?

Your attorney should be able to answer all your questions. Remember, it’s your life on the line, and you need to know if you should accept a plea deal, which means spending some time in prison, or rolling the dice and going to trial. Your attorney can explain the pros and cons of both sides and should be able to help you make the most consequential decision of your life.

Talk to a Criminal Defense Lawyer About Your Options

Deciding whether to accept a plea bargain is complex and depends on the facts of your case, the strength of the evidence, and your personal priorities. It’s not a decision to make without guidance from a legal expert. An experienced criminal defense attorney can review the evidence against you, assess the strength of the prosecutor‘s case, and advise you on whether a plea offer is in your best interests.