The 3 most common things to bargain for during plea negotiations for a felony offense are:
- reducing the charge, preferably to a misdemeanor,
- a shorter jail or prison sentence or, if possible, no jail time at all, and
- more lenient terms of probation.
A skilled criminal defense lawyer can often help negotiate these things on your behalf.
1. Reduced Charges
Many plea bargain negotiations focus on reducing the criminal charges you are facing. This is particularly true when the charges are felony offenses. If you can reduce the charge to a misdemeanor offense, the penalties of a conviction will be substantially lighter. However, you would then have to plead guilty to the lesser offense to secure the mitigated sentence.
This is also known as charge bargaining.
For example: Mark is charged with driving under the influence (DUI). He and his defense lawyer try to bargain for a reduction to the original charge by agreeing to plead guilty to the lesser offense of a “wet” reckless.
Getting a reduction to a lesser charge is especially important if you are facing a felony. A felony conviction carries at least a year in prison and can also result in higher criminal fines.
Less obviously, though, felony probation is likely to be much stricter than misdemeanor probation. Additionally, the collateral consequences of having a felony conviction on your criminal record can be severe. Depending on the jurisdiction and the criminal offense, some of these collateral consequences include:
- losing your right to vote,
- losing your right to own a firearm,
- facing criminal charges for possessing a firearm,
- having to disclose the prior criminal conviction when applying for a job, and
- becoming ineligible for certain professional certifications or licenses because of your criminal history.
These extra punishments make it important to reduce a felony to a misdemeanor charge when negotiating a plea deal.
A criminal lawyer from a reputable law firm can help you get the desired outcome.
2. Shorter Prison Sentence
Many defendants try to negotiate for less prison time during plea negotiations. In some cases, they try to avoid jail altogether. By agreeing to plead guilty to the offense in exchange for the prosecutor’s recommendation of a light sentence, you can avoid the worst penalty of a felony conviction.
This is also known as sentence bargaining.
For example: Bill is charged with forgery. A conviction carries up to 3 years in prison. He wants to plead guilty in exchange for no jail time or a more lenient sentence of 1 year at most.
Note that, in sentence bargaining, you plead guilty in exchange for the prosecutor’s recommendation of a lighter sentence. You are not necessarily guaranteed to get a light sentence. The judge can ignore the prosecutor’s recommendation and impose a harsh sentence. The prosecutor can also recommend a lighter sentence, but not one as light as you were expecting.
Sentence bargaining is more common for less severe offenses, such as misdemeanors, than for felony cases. It is especially common when the offense is eligible for a diversion program.
Getting skilled legal representation from a local law office is the best way to negotiate a reduced sentence.
3. Better Terms of Probation
The terms of your probation can also be negotiated in a plea deal. Because these restrictions can drastically limit your life after you serve your prison sentence, they should be negotiated to best serve your needs.
Depending on the severity and nature of the offense, some common terms and conditions of felony probation include:
- regularly reporting to a probation officer,
- paying court costs,
- completing community service,
- complying with restraining orders,
- finishing a drug, alcohol, or substance abuse program,
- paying victim restitution,
- submitting to drug testing,
- counseling, and
- agreeing to not violate the law while on probation.
Breaking any of these terms and conditions can lead to probation revocation. You could serve whatever time is still left on your sentence in prison. Negotiating terms that are not onerous or difficult to follow is very important. It can reduce the likelihood that you violate probation.
For example: Sam is charged with a sex crime. He wants to negotiate a plea deal that does not require lifetime sex offender registration.
What is the plea bargain process?
The plea bargain process is a negotiation between the prosecution and you and your defense lawyer. The point of the negotiation is to resolve the criminal charges against you without the need of a criminal trial.
The negotiation can begin as early as the arraignment. It can last right up to the moment the jury returns a verdict. However, many plea deals are finalized during the preliminary hearing of the pretrial process. At this point, both law enforcement and your criminal defense lawyer will have gathered enough evidence to form an idea about what happened. Both sides will have an idea of how strong the case is against you.
The strength of the prosecutor’s case will drastically influence the plea bargaining process. If the prosecutor has a strong case, he or she may not compromise much at all. If the case is a weak one, you have far more leverage to secure a favorable plea deal.
Either side can initiate the negotiation process. It can happen surprisingly informally. In many cases, plea bargains are offered and accepted over email, the phone, or even via text message. The negotiation can take months or a matter of minutes.
Reviewing the precise terms of a plea offer is very important. The terms will dictate your future for several years. If there are terms that you do not like, you should try to negotiate them. Plea offers from prosecutors are rarely “take it or leave it” offers, even when the prosecutor says they are. However, having a criminal defense attorney negotiate on your behalf is essential.
Once a plea agreement is made, the judge still has to approve it. The judge will ensure that you have entered into the agreement knowingly and voluntarily before approving it. The case will then move to the sentencing hearing. By accepting the deal, you will have waived your right to a jury trial.
How often are charges resolved with a plea agreement?
Approximately 95 percent of all cases in the criminal justice system are resolved through a plea deal.[1] This is because both the defendant and the prosecutor often have an interest in avoiding trial.
For criminal defendants, accepting a plea agreement:
- can secure a mitigation in the penalties of the conviction,
- avoids the stress and publicity of a trial,
- can get them out of jail, if they are held without bail,
- provides a sense of certainty about the outcome, and
- gives them some power over what the penalties will be.
For prosecutors, a plea agreement ends the case quickly. District attorneys’ offices often have a backlog of criminal cases. They need to resolve as many of them as possible without going to trial. Plea deals are essential for handling their caseload.
Can I appeal a plea deal?
Appealing a plea deal is extremely difficult. You generally have to show that you did not enter it knowingly or voluntarily. It is not enough that you regret the terms that were negotiated in the guilty plea. Criminal law has a strong interest in making plea deals final.
Legal Citations:
[1] Bureau of Justice Assistance, “Plea and Charge Bargaining – Research Summary,” January 24, 2011.
