Negotiating a Plea: The Basics

In many criminal cases, the opportunity to take a plea will arise. This is inevitably a difficult decision for anyone to make. One must weigh the short and long term pros and cons of accepting a plea bargain. Therefore, it is imperative that a defendant understands the intricacies of taking a plea before entering into one.

There are two basic types of plea negotiation: charge bargaining and sentencing bargaining.  Charge bargaining involves negotiating the specific charges to which a defendant will plead guilty. Whereas sentencing agreement seek concessions from the government regarding its sentencing position. For instance, a sentencing agreement may provide:

  • No agreement regarding sentencing, and the parties are free to make any recommendation or argument to the court;
  • The government will make no recommendation to the court regarding sentencing, but understand that the government’s silence does not restrict victims from making a recommendation
  • The government will make a recommendation;
  • The government will not oppose the defendant’s requested sentence; or
  • The government agrees to a specific sentence, sentencing range, or guideline factor, and that agreement is binding on the judge.

One can see that there are many ways to reduce the sentence and/or charge of a crime. However, there are also downsides to accepting a plea. Doing so enters a plea of “guilty” and waives various trial rights that a defendant would otherwise have, such as to appeal if there is a conviction. Because of the serious nature of a plea, there are certain items that a defendant must know and understand for a plea to be valid:

  • The nature of the charges and their essential elements
  • The consequences of the plea
  • The rights that the defendant is waiving

To ensure that these items are met, a judge will provide a plea allocution. Here the judge informs the defendant of their rights, possible sentences, and immigration consequences of accepting the plea. The judge will also ensure that there is a factual basis for the plea and that the plea did not result from force, threats, or improper promises.

It is important to note, that whatever plea you decide, the court may accept or reject this plea. A court must inform the defendant of either decision. If the court rejects the plea, you will have an opportunity to withdraw the plea; however, if the plea is not withdrawn the court may decide the case less favorably towards you than the plea agreement.

A judge’s rejection is not the only time that you may withdraw your plea. A defendant may withdraw a plea any time before the court accepts the plea, for any reason or no reason at all.  Next, a defendant can still withdraw a plea after the court accepts the plea, but before the sentence is imposed. Here, the court would have to either reject the first plea or the defendant must show a fair and just reason for requesting the withdrawal.

The attorneys at Shein & Brandenburg understand the difficult issues involved in a criminal case and the opportunity to take a plea. Our experienced attorneys will help guide you to make the best decision for your case and you.