Heard of plea bargaining, but want to learn more? Attorney Tara Knight explains what you need to know.

Read on to hear Attorney Knight’s expertise on plea bargaining.

What does plea bargaining entail? 

Essentially, plea bargaining is a method used by defense attorneys, prosecutors and judges to resolve a criminal matter short of a full-blown trial.

What is taken into account during plea bargaining sessions?

During plea bargaining, the prosecutor and defense attorney discuss a number of issues concerning the criminal matter at hand. The defendant’s background is strongly considered. For example, does the defendant—the person arrested—have a prior criminal history? Has he or she been to jail before? Is he or she a convicted felon? Is the defendant working and providing for his family? 

The seriousness of the crime is also considered by both the defense and prosecutor. For example, a shoplifting case is far less serious than a gun possession case and will be treated accordingly.

Finally, and most importantly, the strength of the prosecutor’s evidence against the person arrested is a major factor in plea bargaining. If the prosecutor has a very strong case against the defendant, the plea bargain may not be as beneficial to the defendant. If the defense attorney can raise issues concerning the strength of the prosecutor’s case against the person arrested, a more favorable plea bargain may be struck.

Why does the public have a negative impression of plea bargaining?

Plea bargaining is thought to be essential in the criminal justice system and is considered to be a way to resolve cases short of a full-blown trial. The thinking is that if every person who was arrested elected to have a trial, the system would fall apart because of the amount of time and resources necessary to implement that many trials.

As such, defendants who plead out their cases or resolve them short of a trial are given a benefit—that is, they are given the wholesale price of the case rather than the retail price of the case. Plea bargaining does not mean that defendants game the system or walk away with unbelievably good deals. In fact, people often take a plea bargain that they feel is much too harsh because they do not want to risk going to trial and losing and getting a more severe penalty.

In the criminal justice system in both federal and state court, 95% of the cases are resolved by way of plea bargaining. Trials are becoming a less common occurrence. In fact, articles have been written about the phenomenon of this so-called “vanishing trial.”

What happens if a defendant—the person arrested—does not plea bargain?

If a defendant elects to go to trial rather than resolve his case pursuant to a plea bargain then all bets are off. If he wins at trial, it could be a substantial victory, walking out of the courtroom with no conviction, prison time or supervision. The problem is, if the defendant loses, the penalty would be much more severe. That is why defendants are often incentivized to plea bargain. They know if they go to trial and lose, the penalty will be substantially harsher than if they take the deal that is offered during the plea bargaining session. 

Unfortunately, from a defense attorney’s position, this also encourages innocent people to take and plead guilty to crimes they are not necessarily guilty of, because they know the risks of trial and the severe penalties that will attach if they lose. Plea bargaining is essentially a way to dissuade people from going to trial. The policy reason behind this is to prevent the system from getting bogged down and become overwhelmed.