Anyone who’s read a newspaper recently or watched some news on TV knows that the there’s a backlog of cases in the US criminal courts. According to the Federal Bureau of Investigation (FBI), in 2008:

  • Law enforcement agencies made 14,005,615 arrests, and this number doesn’t include traffic violations
  • The arrest rate for violent crimes (like murder and rape) was 198.2 per 100,000 persons; for property crimes (like burglary and theft), the rate was 565.2 arrests per 100,000

You may think that each one of these arrests leads to a criminal trial,” where the state or federal government (called the prosecution) takes the person charged with a crime (called a “defendant”) to court and tries to convict and punish him. That doesn’t happen as often as you think, though.

The fact is, the overwhelming majority of criminal cases are resolved through plea bargains and guilty pleas. That’s when a suspect agrees to admit to committing a certain crime, and the prosecution agrees to drop some charges against him or to give him a lighter sentence than what he’d face if he actually went to trial and lost.

Some Specifics

A plea bargain is an agreement between the prosecution and defense where each one gives up something and each one gets something in return. The prosecution gives up its right to take a case to trial and prosecute to the fullest extent of the law. In return, it’s guaranteed to get a conviction against the defendant. The defendant, on the other hand, agrees to plead guilty and waives his right to a jury trial. In exchange for this, he gets some leniency or favorable treatment from the prosecution. Generally, there are two areas where the prosecution can offer to “go easy” on a defendant:

  • The prosecution may let a defendant plead guilty to a less serious crime or it may offer to drop some charges altogether, and/or
  • The prosecution may recommend that the defendant get a lighter sentence or punishment than the one he would probably get if he went to trial and was convicted by a jury

For example, say a defendant was arrested for and charged with drug trafficking and distribution?- the crime of bringing illegal drugs into the US and/or selling them?- in cocaine and marijuana. In exchange for pleading guilty, the prosecution could offer the defendant:

  • The chance to plead guilty to drug possession, which usually is a much less serious crime than trafficking/distribution
  • To drop the trafficking charge for marijuana in exchange for a guilty plea on the cocaine charge
  • To agree to ask the court, at sentencing, that the defendant be placed on probation rather than serving time in jail

Any plea bargain has to be approved by a court. A judge must talk to the defendant in person and in open court to make sure that the plea is voluntary and isn’t the result of force, threats or promises (promises that aren’t contained in the plea agreement). The judge must also explain to the defendant all of the rights he’s waiving with the plea and the consequences of the plea. For example, the defendant must be told:

  • That he’s waiving the right to a jury trial and (usually) his right to appeal, that is, to have another court look at his case again for errors
  • That he’s waiving the right to confront witnesses against him
  • About the maximum and minimum sentences he could face and any fine he could have to pay if the case went to trial

The laws and court rules in your area?specify exactly what a judge must tell a defendant before a plea is accepted. Most states follow the federal rule?with respect to what a judge must discuss with a defendant before accepting her guilty plea.

Once agreed upon, a plea bargain gives each side certain rights and obligations. That is, each side has to do what it agreed to do. If either side breaks or “breaches” the agreement, a court may enforce it. For example, if a judge finds that the state didn’t live up to its part of the deal by, for instance, not recommending a light sentence as promised in the plea agreement, the court may give the defendant the promised sentence. On the other hand, if a defendant doesn’t do as he promises, the prosecution may prosecute him to the fullest extent of the law., and it may even be able to use evidence obtained against him during the plea process against him during the trial.

For instance, say that before agreeing to plead guilty, the defendant makes statements to the police that tend to show that he committed the crime. Later, he breaks the plea agreement and the state takes him to trial. In most instances, the state can use his pre-plea incriminating statements against him in court.

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When and Why?

The laws or rules of court in your area may put limits on when a plea agreement may be made, but in general a plea bargain can be struck at just about anytime?- from shortly after the time a? suspect is arrested to just before the jury returns a verdict. You should check the laws in your area?to see if there are any limits or restrictions on when a plea bargain can be made.

There are many reasons why plea bargains are so common. For one, the courts and prosecutors like them because they help free up their busy schedules. Prosecutors also like guilty pleas because they guarantee convictions. On the other hand, no matter how strong he may think a case is, there’s no guarantee that a jury will convict a defendant. Defendants like plea bargaining because it gives them some control over their fates. Criminal trials are often long and expensive to litigate, so both defendants and prosecutors like plea bargaining because the case gets resolved quickly and without a lot of expense (this is especially true for defendants who are paying for their own attorneys).

Another reason why the state may offer a plea bargain is to get a defendant to testify against another defendant (called a “co-defendant). For example, say two suspects are arrested for drug-related crimes. It’s one defendant’s first offense, but the prosecution thinks the co-defendant is a “king pin” or runs a drug ring. The state may offer a plea bargain to the defendant in exchange for his testimony against the co-defendant.

Questions for Your Attorney

  • The state is offering me 30 days in jail and a fine if I plead guilty to an assault, but I think I have a good chance of being acquitted if I let a jury hear the case. What do you think?
  • The public defender in my case didn’t tell me that the state was offering me a plea bargain and I was convicted. Is there any way I can accept the plea agreement now? I’m afraid the judge will give me a longer sentence than the one offered by the state in the plea agreement.
  • I accepted a plea agreement, but I’ve changed my mind. Can I take it back or “withdraw” my plea?