Guilty Plea: Plea Bargaining

Plea bargaining consists of the exchange of any actual or apparent concession for a plea of guilty. Nevertheless, the term sometimes is used informally to include discussions about other things. For example, when a prosecutor offers favorable treatment to a defendant in exchange for the defendant's testimony against other suspected offenders, the prosecutor may refer to this offer as plea bargaining. Similarly, a defense attorney who approaches a prosecutor to seek a dismissal of pending criminal charges may refer to their discussion as plea bargaining. These uses of the term, however, seem imprecise. An unqualified dismissal of charges involves neither a plea nor an exchange, and a prosecutor's exchange of concessions for a suspect's or a defendant's testimony may occur without the entry of a plea of guilty.

Under the definition offered above, plea bargaining does not include pretrial diversion. Although diversion is often the result of a bargain and may be granted in exchange for concessions (for example, a defendant's agreement to participate in a specified treatment program), it does not lead to a conviction on a plea of guilty. Instead, if the defendant complies with the required conditions, the pending charges are dismissed, and the case is thus "diverted" from the criminal justice system.

It is common to distinguish between express and implicit plea bargaining. Express bargaining occurs when a defendant or his representative negotiates directly with a prosecutor, a trial judge, or (very rarely) another official concerning the benefits that may follow the entry of a plea of guilty. Implicit bargaining, by contrast, occurs without face-to-face negotiations. Officials—sentencing judges especially—establish a pattern of treating defendants who plead guilty more leniently that those who exercise the right to trial, and defendants therefore come to expect that the entry of guilty pleas will be rewarded.

The concessions officials may offer for a plea of guilty are almost unlimited. Typically, a prosecutor agrees to reduce a single charge against a defendant to a less serious offense (for example, by substituting a charge of manslaughter for one of first-degree murder), to reduce the number of charges against a defendant (for example, by dismissing four bad-check charges when the defendant pleads guilty to one), or to recommend a particular sentence to the court (one the defendant is likely to regard as more lenient than the anticipated sentence after a conviction at trial). Bargaining for a reduction in either the number or severity of criminal charges is referred to as charge bargaining. Bargaining for a favorable sentence recommendation by the prosecutor (or bargaining directly with a trial judge for a favorable sentence) is referred to as sentence bargaining.

In cases of sentence bargaining, trial judges in a substantial number of jurisdictions must either impose sentences no more severe than those recommended by prosecutors or else afford defendants an opportunity to withdraw their guilty pleas. Even when trial judges are legally free to depart from bargained prosecutorial sentence recommendations, they tend to do so infrequently.

Although charge bargaining and sentence bargaining are the most common forms of plea bargaining, they are not the only ones. In fact bargaining, a prosecutor agrees not to contest a defendant's version of the facts or agrees not to reveal aggravating factual circumstances to the court. This form of bargaining is likely to occur when proof of an aggravating circumstance would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines. A prosecutor also may agree to provide leniency to a defendant's accomplices, withhold damaging information from the court, influence the date of the defendant's sentencing, arrange for the defendant to be sent to a particular correctional institution, request that a defendant receive credit on the sentence for time served in jail awaiting trial, agree to support the defendant's application for parole, attempt to have charges in other jurisdictions dismissed, arrange for sentencing in a particular court by a particular judge, provide immunity for crimes not yet charged, or simply remain silent when a recommendation otherwise might be unfavorable.