Criminal Law

Why Do Most Criminal Cases End With Plea Bargains?

By Thomas Seigel, Attorney and Former Federal Prosecutor
When the prosecutor's case is weak, you may be tempted to go to trial and hope for an acquittal. But a guilty verdict gives the judge the ability to sentence you to the max. It might be smarter to bargain to a lesser charge in exchange for a promise to recommend a light sentence.

The vast majority of criminal cases never go trial. In fact, 90% or more of all criminal matters get resolved by guilty pleas pursuant to plea bargains, which are agreements between a defendant and the prosecutor’s office. Why does this happen in a judicial system that guarantees defendants the right to trial, presumes them innocent until proven guilty, and requires the government to prove its case beyond a reasonable doubt? Despite these favorable rights and others—like the right to remain silent and the requirement of a unanimous verdict—defendants overwhelmingly choose to give up the right to trial and accept a plea deal from the prosecutor.

Let’s look at why there are so many guilty pleas.

Prosecutorial Discretion: Settling for Less with Weak Cases

Most of the time, prosecutors are confident that they have the necessary evidence to prove their case before they bring formal charges against a defendant. But some cases are stronger than others, and if a case is not rock-solid, a prosecutor may settle for a plea bargain to a lesser offense, or agree to recommend a specific sentence, rather than go to trial and risk an acquittal or hung jury, or even a conviction and a light sentence. In addition, the prosecutor never knows what may happen at trial; if defense counsel is particularly skilled, the chances of losing go up.

Overcharging the defendant: Raising the stakes to get a plea

If the prosecution believes that it has one or two strong charges against a defendant, it may bring several other charges in the case even though the proof of these other crimes is weaker. Prosecutors sometimes overcharge to increase their bargaining power in plea negotiations, even though it angers some judges, who see it as a bullying tactic. Prosecutors generally do not worry about losing on a few charges at trial as long as they convict the defendant of at least one of the crimes charged. However, additional charges present a real risk to a defendant. If a jury finds the defendant guilty of all charges, the sentence could be significantly higher. Prosecutors often use this possibility of a harsher penalty to their advantage in persuading a defendant to accept a plea bargain.

Defense Realities: Some Cases are Not Easily Defensible

Movie and TV crime dramas make every case seem like a puzzling “whodunit.” In reality, a very small number of cases would make a good television show. Thousands of daily thefts, frauds, and assaults are easily investigated and can be successfully prosecuted as charged.

Because modern pre-trial rules require the prosecutor to share evidence with the defendant before trial, defense counsel can normally make an early and accurate judgment about the likelihood of conviction. If a trial is likely to result in a guilty verdict, a defendant has a strong motive to look for a resolution that will minimize the penalties at sentencing.

While the ultimate sentence may be up to the judge, a promise from the prosecution to recommend a lower sentence or sentencing range and to dismiss other charges can be a powerful incentive for defendants to enter guilty pleas. In addition, sometimes judges reduce their sentencing calculations when defendants have accepted responsibility for the crime by pleading guilty.

The Sentencing Risks of Going to Trial

When defendants choose to go to trial—sometimes against the advice of counsel—and are convicted, the trial judge (who will sentence them later) will likely have heard detailed evidence of the crime and perhaps other uncharged criminal conduct. The judge might, for example, have heard the tearful testimony of victims and eyewitnesses. This damning evidence, and certainly its in-person presentation, might not have come before the judge had the defendant plead guilty. It’s possible that these courtroom experiences will play a part in the judge’s sentencing choice.

Keep in mind that when a defendant is convicted at trial, the prosecution will not be limited when it comes to arguing for a stiff sentence. Unlike a plea bargain, which by its nature involves a promise to stick to an agreed-upon sentence recommendation, the prosecutor is free to recommend the highest sentence possible.

Finally, a defendant’s ability to plausibly ask for mercy at sentencing might be strained following a trial. Defendants who have plead guilty can express remorse, acceptance of responsibility, and a desire to save the court and the victims from a lengthy and perhaps emotional trial. None of these mitigating factors are available to a defendant who has chosen to go to trial.

Making the Decision to Plead Guilty

The decision to forfeit the right to trial and plead guilty is a serious one and can be made only after thorough consultation with your lawyer about the facts and the law in your case. The decision is so important that the judge, during a guilty plea hearing, will question you to make sure you have understood all the rights you are giving up by pleading guilty.

While every defendant has a right to go to trial, a defendant must consider the likelihood of conviction and weigh that against the benefits of being sentenced pursuant to a plea bargain with the government. In most instances, based on the statistics, defendants will choose to make a deal. However, you are not just a statistic and need to make that decision based on the unique circumstances of your case.

Questions to Ask Your Lawyer

  • How might going to trial affect my potential sentence?
  • What types of plea bargains do prosecutors offer in my case?
  • Are there any important legal issues we could raise on appeal?
  • What rights am I giving up by pleading guilty?
  • Will I be able to get a plea bargain if we wait until trial is about to start?
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