What Is Sentence Bargaining, and Should You Take the Deal?

Sentence bargaining is a deal where you plead guilty in exchange for a lighter sentence. It is one kind of plea bargain. These deals are made in private, sometimes in minutes, and they shape the rest of a person's life.

You cannot read a book or watch a TV show about a criminal case without plea bargaining coming up. It is everywhere in our justice system, and it is the practice with the fewest checks and balances.

Almost every criminal case ends this way, and very few go to trial. The original version of this article put the share of state and federal cases that end in a plea at 90 to 99 percent. The Supreme Court has noted that 97% of federal convictions and 94% of state convictions come from guilty pleas (Missouri v. Frye, 566 U.S. 134 (2012)). Yet there is little judicial oversight of how these deals are made.

Sentencing Bargaining

Charge bargaining vs. sentence bargaining

• Charge bargaining focuses on the crime you plead guilty to. For example, a person accused of murder might be offered a plea to manslaughter.
• Sentence bargaining focuses on the sentence. The same person might plead guilty to murder (the crime actually committed) in exchange for a lighter sentence.

Put simply, the question is whether you care what charge ends up on your record.

Why choose a sentence bargain?

The main question is whether accepting the more serious charge on your record is worth a shorter sentence.

If you already have prior convictions, you may care less about what the new charge is called and more about how much time you serve. In that case, a sentence bargain may make sense.

But the charge itself can have serious consequences:

• Some violent crimes count as "strikes" under federal or state "three strikes" laws, which bring very long sentences for repeat offenses (for federal law, see 18 U.S.C. § 3559(c)).
• Some sex offenses require registering as a sex offender.

As with any decision about a criminal conviction, think through any plea offer carefully with your defense lawyer. You do not have to take the first offer the prosecutor puts on the table. Take the time to make sure the deal is reasonable and that you understand every consequence of pleading guilty to a particular charge.

And remember, you are presumed innocent. The government must prove you committed a crime beyond a reasonable doubt.

How the plea process works in federal court

Plea talks happen between the prosecutor and your lawyer, who must consult with you. The judge is not allowed to take part (Fed. R. Crim. P. 11(c)(1)), and no one oversees the negotiation itself. The prosecutor often has more leverage, because they know best how strong the evidence is.

The judge does control whether to accept the deal. What happens if the judge does not follow the sentence depends on the type of deal:

• A sentencing recommendation (Rule 11(c)(1)(B)): The judge does not have to follow it. If the judge imposes a higher sentence, you generally cannot take back your guilty plea.
• An agreed specific sentence (Rule 11(c)(1)(C)): If the judge accepts the deal, the judge is bound by it. If the judge rejects it, you must be given the chance to withdraw your plea.

Know which type of deal you are signing before you plead guilty. Judges often go along with the terms of a plea agreement, but they do not have to.

Read the whole agreement, not just the sentence terms. Many federal plea deals include an appeal waiver, a promise not to appeal or challenge the sentence later, and some include agreed guideline calculations that can be hard to undo. Ask your lawyer to walk you through every paragraph.

If everyone, including the judge, is on the same page about the deal, the court holds a plea hearing.

The plea hearing

At the plea hearing, the judge must make sure that:

1. You understand the rights you are giving up, including the right to a jury trial.
2. You are giving up those rights voluntarily, not because of threats or promises outside the deal.
3. There are enough facts to show the crime happened and that you committed it.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.