How a plea bargain / plea deal / plea agreement works.

The terms – plea bargain/deal/agreement are interchangeable.  The best way to explain how it works is just to look at the nature of the word “bargain,” “deal” and “agreement.”  The terms in the business world mean that each side, the seller and the buyer, get something that they like.  Just like buying a car, at some point the “deal”/ “bargain” / “agreement” is reached where the buyer gets a price he is willing to pay to acquire the car, and the seller gets an amount of money he agrees to accept in exchange transferring the car to the buyer.  If the price is too high, the buyer will not agree and there is no bargain/deal/agreement.  Likewise, if the price is too low, the seller will not agree, and there will be bargain/deal/agreement.

In the world of criminal law, there is often a point where the defendant will agree to plead guilty to a charge (or agree to accept a designated amount of incarceration) in exchange for the prosecutor dropping more serious charges (or dropping the amount of incarceration.)  If the punishment demanded by the prosecutor is too harsh, the defendant does not reach a bargain/deal/agreement.  Similarly, if the defendant is looking for too much leniency, the prosecutor may reject it, and then there is no bargain/deal/agreement.  A plea bargain / plea deal / plea agreement is reached when the defendant believes that accepting a certain punishment is acceptable in order to protect himself from the possibility of a worse punishment, and the prosecutor believes that giving up the future possibility of a worse punishment is acceptable so that he can avoid the risk of losing a case in the future.  (Also, prosecutors have too many cases and they cannot possibly go to trial on every case.  Thus, they often offer plea deals so that they can concentrate on more controversial cases.)

It is rare that a prosecutor will completely dismiss all charges because he would not be getting anything in the deal.  Likewise, a defendant would not plead guilty to the highest charge possible and accept no reduction in possible punishment, because he would not get anything.  Just like with buying a car, plea deals/bargains occur when the prosecutor gets something and the defendant gets something.

Prior to court and prior to the first meeting between a prosecutor and the defense attorney, each has done his homework.  The defense attorney has analyzed the facts and the law and made a determination on the odds of winning the case at trial, and if a loss occurs, what the expected punishment would be.  Likewise, the prosecutor has analyzed the law and the facts and has made his own determination as to whether he will win and what punishment he could expect.

At a certain point in the criminal court process, the prosecutor and the defense attorney will speak, usually prior to court, but often while the court docket is going and other cases are being discussed.  At this meeting, the defense attorney – on behalf of the defendant, and the prosecutor – on behalf of the state, discuss the case and try to find an agreement so that they can enter into a plea bargain/deal/agreement that is acceptable to the state and the defendant. On the prosecutor’s side, the prosecutor has the ability to amend charges up or down, dismiss charges or add charges.  On the defense side, the defense attorney can take a case to trial, agree to plead guilty to a lesser offense, or agree to plead to the charge but accept a punishment that is less than the defendant could expect to get at trial.  Thus, in the negotiations, the prosecutor may agree to lower the charge or guarantee a lower punishment in exchange for the defendant agreeing to plead guilty to a charge.  The defendant may fear losing a trial and agree to plead guilty to the lower charge or agree to the lower punishment.  It is important to note that there no obligation for a prosecutor to make a plea offer and there is no obligation for a defendant to accept one.  It is just like a contract.  When both sides perceive it is in their best interest to enter into a contract, the contract is done.

Whether or not to accept any plea bargain / plea deal / plea agreement in a case is defendant’s decision alone.  The defense attorney is required to present all offers from the government, whether the defense attorney thinks it is a good deal or not.  The defense attorney can, of course, advise his client on the plea deal / plea bargain / plea agreement that the state offers and make recommendations to his client.

In some instances, it is advantageous for the defendant to accept a plea deal / plea agreement / plea bargain even if he did not commit the crime.  This situation comes up where the facts are such that a Judge or Jury may believe the defendant is guilty, even though in reality he is not.  I often have said, “I know you did not do it.  You know you did not do it, and God knows you did not do it.  However, a Judge or a Jury is not God.  They just listen to the facts, and when they hear these facts, I think you may be found guilty.  So maybe entering into a plea deal / plea bargain / plea agreement for a lesser charge or for lesser punishment would be a better way to protect yourself than going to trial and risking catastrophic incarceration.”

When you buy a car, prior to going to the dealership, you go onto the web and research the features, price that others have paid, rebates that the dealer may get.  Likewise, anyone charged with a crime should do the same.  Since only experienced defense attorneys know the law, how certain facts can lead to convictions or exoneration, and what has happened in similar situations in the past, the only way to be prepared for negotiating a plea bargain / plea agreement / plea deal is to retain an experienced attorney such as the criminal defense attorney Fairfax VA locals trust who works in your court.

Albo & Oblon Attorney and counselors at lawA special thanks to our authors at Albo & Oblon, LLP for their insight into Criminal Law.