Plea Bargains: Why and When They are Made

As criminal courts become ever more crowded, prosecutors and judges feel increased pressure to move cases quickly through the system.

Trials can take days, weeks or sometimes months while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable–but a plea bargain provides both prosecution and defense with some control over the result.

For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means that less than 10% of criminal cases result in a trial. And though some still view plea bargains as secret, sneaky arrangements that are antithetical to the people’s will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court.

Defendants’ Incentives for Accepting Plea Bargains

A discussion of the most common reasons why a defendant might want to enter into a plea bargain. For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a less severe charge than might result from taking the case to trial and losing. Another fairly obvious benefit that defendants can reap from plea bargaining is that if they’re represented by private counsel, they can save a bundle on attorney fees. It almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain.

There may be other benefits as well:

Getting Out of Jail

Defendants who are held in custody–who do not qualify for release on their own recognizance or who either do not have the right to bail or cannot afford bail–may get out of jail immediately following the judge’s acceptance of a plea. Depending on the offense, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time, but will still get out much sooner than if he or she insisted on going to trial.

Resolving the Matter Quickly

This has the intangible benefit, touched on above, of providing resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait–and causes much more stress–than taking a plea bargain.

Having Fewer or Less Serious Offenses on One’s Record

Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses looks a lot better on a defendant’s record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction for driving under the influence (DUI) may carry mandatory jail time; whereas if the first DUI offense had been bargained down to reckless driving, there may be no jail time for the “second” DUI.

Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor, or from a felony that constitutes a strike under a “three strikes” law to one that doesn’t, can prove to be a critical benefit. Some professional licenses must be forfeited upon conviction of a felony. Future employers may not want to hire someone previously convicted of a felony. Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons can’t own or possess firearms. And in many jurisdictions, felons can’t vote.

Having a Less Socially Stigmatizing Offense on One’s Record

Prosecutors may reduce charges that are perceived as socially offensive to less offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant’s relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn’t carry the same stigma.

Avoiding Hassles

Some people plead guilty–especially to routine, minor first offenses–without hiring a lawyer. If they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.

Avoiding Publicity

Famous people, ordinary people who depend on their reputation in the community to earn a living and people who don’t want to bring further embarrassment to their families all may chose to plead guilty or no contest to keep their names out of the public eye. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant’s background explored in the course of a plea bargain to the extent it may be done at trial.

Keeping Others Out of the Case

Some defendants plead guilty to take the blame (sometimes called the “rap”) for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.

Prosecutors’ and Judges’ Incentives for Accepting Plea Bargains

Crowded calendars and overburdened prisons provide powerful incentives to many judges and prosecutors.

For a judge, the primary incentive for accepting a plea bargain is to move along a crowded calendar. Most judges simply don’t have time to try every case that comes through the door.

Additionally, because jails are overcrowded, judges may face the prospect of having to release convicted people (housed in the same facilities as those awaiting trial) before they complete their sentences. Judges often reason that using plea bargains to “process out” offenders who are not likely to do much jail time leads to fewer problems with overcrowding.

For a prosecutor, the judge’s concerns about a clogged calendar are the prosecutor’s concerns as well. When the judge is bogged down, the judge puts pressure on the prosecutors to move cases along quicker. To keep judges happy and keep the machine rolling prosecutors must keep “the bodies” moving (as criminal defendants are most unfortunately referred to by some courthouse regulars).

Of course, prosecutors are also concerned about their own calendars. Crowded calendars mean that the prosecutor’s staff is overworked. Plea bargains tend to lighten everyone’s caseload. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor’s budget. With today’s cutbacks on already slim resources, prosecutors feel they will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains.

Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a “slam dunk.” The prosecution may wage a long, expensive and valiant battle, and still lose the case as did prosecutors in the O.J. Simpson criminal trial, for example.

Plea bargains also give prosecutors flexibility. For instance, they can offer a deal to someone whom, though guilty, has given testimony about a co-defendant or helped resolve some other troubling case.

Finally, prosecutors may use plea bargains to circumvent laws they don’t agree with. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor’s office may have an unwritten policy of giving all such offenders “offers they can’t refuse,” such as a $25 fine and 10 hours of community service. Or, in some cases, the prosecutor may simply dismiss the case in the interests of justice.

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