How are Plea Bargains Made?

Last Updated on February 25, 2025

Everyone has heard the term “plea bargain,” but far fewer could give you the definition or tell you what different types of plea agreements exist. Interestingly, while the average person knows far more about criminal trials, most cases in America are settled through plea bargains. Nationwide, the Department of Justice reports that between 90 and 95% of all cases end in plea bargains, and in California, only 2% of cases end in trials. Here’s what an average citizen should know about these trial alternatives.

What is a Plea Bargain?

A plea agreement, or plea bargain, is a deal between the prosecutor and the defendant in which the defendant agrees to plead guilty in exchange for a lighter sentence, reduced charges, or other concessions to minimize the consequences they may face for a crime.

For a plea bargain to work, the prosecution, the defendant, and his attorney must see benefits to their side. In most cases, the parties want to obtain a quick resolution to the charges that will minimize the time and money they spend trying to argue on their behalf. Beyond that, prosecutors typically want to be able to close the case quickly, while defendants usually want to face as few punishments as possible so they can return to their regular life as soon as possible.

Research has shown that defendants who plead guilty typically receive more lenient sentences than they would have if they attempted to fight the charges in a trial. On average, bypassing a jury trial by pleading guilty can reduce someone’s sentence by as much as 50%. For those considering their chances at trial, only about 1 in 5 cases brought to a jury trial result in an acquittal —around 80% of people are found guilty.

The 4 Types of Plea Bargains

There are four different kinds of plea agreements commonly used in American courts:

• In Charge Bargaining, a suspect pleads guilty to a lesser charge than they initially faced. One of the most common types of charge bargains seen in San Diego is replacing a DUI charge with a wet reckless.
• Count Bargaining is when a defendant pleads guilty to one or more of the original criminal charges in exchange for the state dropping the rest. If a suspect were charged with five counts of fraud and pleaded guilty to only two, that would be count bargaining.
• Sentence Bargaining is exactly what it sounds like —a guilty plea made in exchange for a reduced sentence. For felony cases, this could mean knocking a life sentence down to ten years in prison. In misdemeanors, it often means ensuring someone serves no jail time.
• Fact Bargaining is more complicated than other agreement types as it involves knowing the details of the law. Essentially, it means someone is willing to plead guilty in exchange for the state agreeing to omit certain information in its case. For example, if someone was drunk driving with a child in the car, they could leave out that the juvenile was in the car so the defendant would not be subject to the enhanced sentencing related to that fact. Because these bargains typically involve leaving out information that could result in increased charges, counts, or sentences, some people don’t consider it a distinctive type of plea deal, which is why some people claim there are only three kinds of plea agreements.

Are Plea Bargains Legal In California?

In 1982, California voters became so concerned about the effects plea bargains have on the justice system that they tried to ban pleas for serious felonies and DUIs. The law, which remains on the books today, allows plea bargaining only in three specific cases:

• when there is not enough evidence to prove the state’s case
• when the testimony of a material witness cannot be obtained
• when a reduction or dismissal will not make a substantial change in the sentence

While the law was intended to ban all plea bargains, it had major loopholes because it only applies to the information and indictment stages of the criminal process. Since most plea bargains occur after an arraignment, before a preliminary hearing, or during a grand jury indictment, the law rarely affects a prosecutor and a defense lawyer’s ability to negotiate a plea.

Plea Bargaining Pros and Cons

There are many benefits and drawbacks to plea agreements, and people both in and out of the justice system frequently debate whether they are beneficial for defendants, the state, and society as a whole.

Pros for the government include:

• Saving the state money: Trials cost the government money. The state must pay the salaries of bailiffs, judges, prosecutors, transcriptionists, and more. Plea bargains allow criminal cases to be resolved dramatically faster, costing a fraction of the cost of a trial.
• Freeing up the courts: By allowing prosecutors and defense attorneys to sort things out themselves, cases can move more freely through courts, lightening the load on prosecutors, public defenders, judges, and everyone else involved in the judicial system.
• Keeping vulnerable victims out of court: To prove some charges in court, the prosecution often needs to rely on victims of a crime to testify on the stand. Appearing in court can be traumatizing for many victims, particularly minors and those who were victimized through sex crimes. While these victims may sometimes need to appear at the preliminary hearing to testify in front of the judge, a plea bargain can help ensure they do not need to relive the details of their experience in front of a full courtroom and a panel of jurors.

Benefits for those accused of crimes include:

• Saving defendants money: Hiring an attorney costs money, and most people aren’t bringing in any income when they are stuck in court or behind bars waiting for a trial. By pleading guilty, the defendant can speed up the process and, if they can avoid incarceration, return to work.
• The chance to move on: Being accused of a crime is a difficult situation that most people want to move past as soon as possible. By pleading guilty, a defendant can put the matter behind them in the fastest, most efficient way possible.

Cons of plea bargains for defendants include:

• Pressure to plead guilty: Sadly, the benefit of saving money and avoiding more serious consequences is often enough to convince someone to give up their Sixth Amendment right to a fair trial and agree to plead guilty even when they are innocent. This problem is more likely when a low- or middle-class individual faces misdemeanor charges and is given a chance to get out of jail in time to avoid losing their job or apartment, which could potentially happen if they chose to fight the charges in court.
• Discriminatory outcomes: Prosecutorial discretion means that prosecutors have the freedom to drop charges and reduce sentences as they see fit. Unfortunately, research shows that black defendants suffer through this system and are dramatically less likely than whites to receive reduced pleas or be given lighter sentences if offered a plea agreement.
• Allows cases with insufficient evidence to move forward. Sometimes prosecutors seek out plea bargains to secure a conviction when they lack enough evidence to prove the defendant’s guilt in court.
• Makes it more difficult to hold police and prosecutors accountable. Whereas trials tend to bring truth to light, plea bargains make it easy to bury the truth. It is much harder to identify police and prosecutorial misconduct when the matter is handled out of court.

Disadvantages of plea bargaining for the government include:

• Encourages lighter sentences: Those who believe the state should be tough on crime often oppose plea bargaining because it allows guilty parties to shirk some of the consequences of their actions.
• Bypasses victim rights: Plea bargains often bypass input from the victim of a crime, whereas they may be allowed to present their case in a trial. In California, though, victims are allowed to voice their concerns and feelings during the plea bargain process.

Should You Agree to a Plea Bargain?

Ultimately, this is a matter you should discuss with your criminal defense attorney, as it will vary based on your specific circumstances. Generally, plea bargains are advisable in cases where:

• there is ample evidence against you
• you are facing multiple charges or counts
• you do not qualify for a diversion program

On the other hand, if there is minimal evidence against you or you qualify for a diversion program, a plea bargain may not be the right option for you.

Professional License Considerations

When a licensed professional, such as a doctor, Realtor, dentist, or lawyer,  is charged with a crime, they face more than just fines or incarceration; they may also lose the credentials to work in their field. While serious criminal charges, like rape, murder, or child molestation, may cost most professionals their licenses, in most cases, the consequence only applies if the offense is seen as something substantially relevant to the person’s profession. For example, while a real estate agent probably won’t lose their credentials if they’re caught dealing drugs, a pharmacist might.

Plea bargains can be critical in these cases, as they can ensure the individual is convicted of a misdemeanor or alternative offense that will not affect their ability to maintain their professional license. For example, while aggravated assault is considered a crime of moral turpitude that could prevent someone from practicing law, standard assault would not impact their career.

If you have been charged with a crime, speak with your lawyer about whether or not a plea bargain would be the right option in your case. Peter M. Liss can be instrumental in helping you evaluate what will be the best move for your situation. Please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation.