“Felony Plea Bargain” – 3 Key Defense Strategies

The three most common things to bargain for during plea negotiations for a felony offense are:

1. reducing the charge, preferably to a misdemeanor,
2. a shorter jail or prison sentence or, if possible, no jail time at all, and
3. more lenient terms of probation.

The plea bargain process is a negotiation between the prosecution and you and your defense lawyer. The point of the negotiation is to resolve the criminal charges against you without the need of a criminal trial.

A skilled criminal defense lawyer can often help negotiate these things on your behalf. In this article I delve into what felony plea bargains entail. Also listen to our informational podcast:

1. Reduced Charges

Many plea bargain negotiations focus on reducing the criminal charges you are facing. This is also known as charge bargaining.

In charge bargaining, you plead guilty to a lesser offense to secure a mitigated sentence, such as:

• a lower fine,
• a shorter period of incarceration, if any, and/or
• laxer probation terms.

Felonies typically carry a minimum of one year in prison, so pleading to a misdemeanor instead automatically lowers the maximum time you must spend behind bars. Misdemeanor probation also is less strict than felony probation.

Another benefit of reducing a felony to a misdemeanor charge is avoiding the collateral consequences of having a felony conviction on your criminal record. Depending on the jurisdiction and the criminal offense, some of these collateral consequences include:

• losing your right to vote,
• losing your right to own a firearm,
• facing criminal charges for possessing a firearm,
• having to disclose the prior criminal conviction when applying for a job, and
• becoming ineligible for certain professional certifications or licenses because of your criminal history.

2. Shorter Prison Sentence

The most common aspect of felony plea negotiations is trying to secure a lesser prison sentence, if any. This is also known as sentence bargaining.

For example: Bill is charged with forgery. A conviction carries up to three years in prison. He wants to plead guilty in exchange for no jail time or a more lenient sentence of one year at most.

With sentence bargaining, you plead guilty in exchange for the prosecutor’s recommendation of a lighter sentence: The judge can ignore the prosecutor’s recommendation and impose a harsh sentence. The prosecutor can also recommend a lighter sentence, but not one as light as you were expecting.

Sentence bargaining is more common for less severe offenses, such as misdemeanors, than for felony cases. It is especially common when the offense is eligible for a diversion program.

Getting a felony lessened to a misdemeanor reduces or eliminates your incarceration sentence.

3. Better Terms of Probation

The terms of your probation can also be negotiated in a plea deal. Because these restrictions can drastically limit your life, they should be negotiated to best serve your needs and to reduce the chances of you violating probation.

For example: Sam is charged with a sex crime. He wants to negotiate a plea deal that does not require lifetime sex offender registration.

Depending on the severity and nature of the offense, some common terms and conditions of felony probation include:

• regularly reporting to a probation officer,
• paying court costs,
• completing community service,
• complying with restraining orders,
• finishing a drug, alcohol, or substance abuse program,
• paying victim restitution,
• submitting to drug testing,
• counseling, and
• agreeing to not violate the law while on probation.

Breaking any of these terms and conditions can lead to probation revocation. The judge could then order you to serve the remainder of your sentence in behind bars.

How are plea bargains negotiated?

The negotiation can begin as early as the arraignment and can last right up to the moment the jury returns a verdict. However, many plea deals are finalized during the preliminary hearing of the pretrial process.

At this point, both law enforcement and your criminal defense lawyer will have gathered enough evidence to form an idea about what happened. Both sides will have an idea of how strong the case is against you.

Either side can initiate the negotiation process. It can happen surprisingly informally. In many cases, plea bargains are offered and accepted over email, the phone, or even via text message. The negotiation can take months or a matter of minutes.

How much bargaining power do I have?

The strength of the prosecutor’s case will drastically influence the plea bargaining process. If the prosecutor has a strong case, they may not compromise much at all. If the case is a weak one, you have far more leverage to secure a favorable plea deal.

Plea offers from prosecutors are rarely “take it or leave it” offers, even when the prosecutor says they are. However, having a criminal defense attorney negotiate on your behalf is essential.

Reviewing the precise terms of a plea offer is very important. The terms will dictate your future for several years. If there are terms that you do not like, you should try to negotiate them.

Does the judge have to approve plea deals?

Yes. Once a plea agreement is made, the judge still has to approve it. The judge will ensure that you have entered into the agreement knowingly and voluntarily before approving it.

The case will then move to the sentencing hearing. By accepting the deal, you will have waived your right to a jury trial.

How often are charges resolved with a plea agreement?

Approximately 95 percent of all cases in the criminal justice system are resolved through a plea deal.¹ This is because both you and the prosecutor often have an interest in avoiding trial.

Accepting a plea agreement:

• can secure a mitigation in the penalties of the conviction,
• avoids the stress and publicity of a trial,
• can get you out of jail, if you are held without bail,
• provides a sense of certainty about the outcome, and
• gives you some power over what the penalties will be.

For prosecutors, a plea agreement ends the case quickly. District attorneys’ offices often have a backlog of criminal cases. They need to resolve as many of them as possible without going to trial. Plea deals are essential for handling their caseload.

The vast majority of cases resolve through plea bargains in order to avoid the time, expense, and risk of trial.

Can I appeal a plea deal?

Appealing a plea deal is extremely difficult. You generally have to show that you did not enter it knowingly or voluntarily.

It is not enough that you regret the terms that were negotiated in the guilty plea. Criminal law has a strong interest in making plea deals final.²

Additional Resources

For more in-depth information about plea bargains, refer to these scholarly articles:

• The Prisoners’ (Plea Bargain) Dilemma – Journal of Legal Analysis.
• Fairness and the Willingness to Accept Plea Bargain Offers – Journal of Empirical Legal Studies.
• The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court – Immigration and Nationality Law Review.
• Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process – Denver University Law Review.
• Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel – Denver University Law Review.

Legal References