Plea Deals and How Plea Bargaining Works

What a Plea Deal Is

A plea deal, or plea bargain, is an agreement in a criminal case: you plead guilty, and the prosecutor gives you something in return. That might be dropping other charges, charging a less serious crime, or asking the judge for a lighter sentence. You give up your right to a trial, and a judge must approve the deal before it takes effect (Rule 11).

People say “plea deal,” “plea bargain” and “plea agreement” for the same thing. The deal can come at almost any point, from the first court date to the morning of trial.

You can plead in three ways. A guilty plea admits the crime. A no contest plea, also called nolo contendere, accepts the conviction without admitting guilt, and in federal court it needs the judge’s consent. An Alford plea is a guilty plea in which you keep saying you are innocent; the Supreme Court allowed it in 1970 when the evidence of guilt is strong (North Carolina v. Alford).

How Often Criminal Cases End in a Plea Deal

Nearly all of them. A trial is now the exception. In federal court, 97.2% of the people sentenced in 2024 had pleaded guilty and 2.8% had gone to trial (U.S. Sentencing Commission). The Supreme Court put the point bluntly in 2012, quoting legal scholars: plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system” (Missouri v. Frye).

Trials were 5 times as common in 1970. About 15% of federal cases went to trial that year. By 2015 the share was 2.9%.

Share of federal cases that went to trial

Category	Value
1970	15%
2015	2.9%
2024	2.8%

1970: Sourcebook of Criminal Justice Statistics, and 2015: U.S. Sentencing Commission, both as cited in NACDL, The Trial Penalty (2018). 2024: share of people sentenced in federal court who went to trial, U.S. Sentencing Commission 2024 Sourcebook, Table 11. The sources count cases slightly differently, so read the trend, not the exact gap.

The Three Kinds of Plea Deals

Federal rules recognize three kinds of plea agreement, and the difference that matters most is whether the judge is bound. The judge must not take part in the bargaining (Rule 11).

The sentence-recommendation deal is where people get surprised. A prosecutor’s recommendation does not bind the judge, so the sentence can come out higher than you expected, and under the federal rule that alone is not a reason to take back your plea. Before you agree, ask your lawyer which kind of deal you are being offered. State courts have their own rules, so ask how yours work.

How a Plea Deal Works, Step by Step

The deal is negotiated between lawyers, then tested in open court, where a judge questions you before accepting it.

How a federal plea deal moves from offer to sentence

1. 1 After charges An offer comes in The prosecutor makes an offer, usually to your lawyer. Your lawyer must pass on every formal offer.
2. 2 Days to months Your lawyer weighs it Your lawyer reviews the evidence, the likely sentence after a trial and the terms, and you decide whether to counter or accept.
3. 3 Before a hearing The deal is written down The agreement lists the charges you will plead to, what the prosecutor promises, and any rights you waive, such as most appeals.
4. 4 Plea hearing The judge questions you In open court, the judge must tell you the rights you give up and the penalties, and must find the plea voluntary and backed by facts.
5. 5 Same hearing or later The judge accepts or rejects If the judge rejects a charge or agreed-sentence deal, you may withdraw your plea.
6. 6 Weeks to months Sentencing The judge imposes the sentence. After this, the plea can be undone only on appeal or by a later challenge.

Source: Federal Rule of Criminal Procedure 11, Cornell LII; Missouri v. Frye (2012) on passing on offers. Timing varies by court and case.

Rights You Give Up With a Guilty Plea

A guilty plea gives up the rights you would have at trial, and a federal judge must say each one out loud before accepting your plea (Rule 11(b)):

• Your right to plead not guilty, or to keep your not-guilty plea
• Your right to a jury trial
• Your right to a lawyer at trial and every other stage
• Your right to confront and cross-examine the witnesses against you
• Your right to testify and present evidence, and your protection from being forced to incriminate yourself
• Your right to force witnesses who can help you to come to court

The judge must also tell you the maximum and any minimum penalty, any fine, restitution or forfeiture, and, if you are not a citizen, that the plea could lead to deportation. If the deal waives your right to appeal, the judge must make sure you understand that too.

The Trial Penalty

The “trial penalty” is the gap between the sentence you are offered in a deal and the one you risk if you go to trial and lose. It is the main reason so few cases reach a jury. A 2018 report by the National Association of Criminal Defense Lawyers analyzed U.S. Sentencing Commission data and found that in 2015 the average federal sentence after trial was more than triple the sentence after a plea in most offense categories (NACDL).

Averages do not measure the choice any one person faces, and the report says so. People who go to trial may differ from people who plead, and plea offers themselves are off the record. Supporters say plea deals bring quick, final outcomes and give a lighter sentence to people who accept responsibility; the Supreme Court has called plea bargaining “an essential component of the administration of justice” (Santobello). Critics, including the defense lawyers who wrote the report, say the gap has become so large that it coerces people out of the jury trial the 6th Amendment promises.

Why Innocent People Plead Guilty

When the sentence after a trial loss is many times the offer, even an innocent person can decide the deal is the safer bet. Of the 1,702 exonerations the National Registry of Exonerations had recorded by November 2015, 261 involved people who had pleaded guilty, about 15% (National Registry of Exonerations). Researchers cited in the NACDL report estimate that between 1.6% and 27% of people who plead guilty may be innocent, a range that shows how little is known.

The law allows strong pressure. In Bordenkircher v. Hayes (1978), Paul Hayes was charged with passing a bad check for $88.30, a crime carrying 2 to 10 years. The prosecutor offered 5 years and warned that if Hayes refused, he would add a habitual-offender charge carrying a mandatory life sentence. Hayes refused, was convicted, and got life in prison. The Court ruled 5 to 4 that this was the lawful “give-and-take” of plea bargaining, because Hayes was “free to accept or reject the prosecution’s offer” (Cornell LII).

Pretrial jail adds pressure. A person held because they cannot pay bail can lose a job or housing while waiting, and a plea can be the fastest way out. Our cash bail explainer covers how bail works.

Withdrawing or Appealing a Plea Deal

In federal court, the earlier you act, the easier it is to take back a plea. Before the judge accepts it, you can withdraw it “for any reason or no reason.” After the judge accepts it but before sentencing, you need “a fair and just reason,” or the judge must have rejected a binding deal. After sentencing, the plea stands unless an appeal or a later challenge undoes it (Rule 11(d)-(e)).

• A promise the prosecutor breaks can be enforced. In Santobello v. New York (1971), the Court held that when a plea rests on a prosecutor’s promise, “such promise must be fulfilled” (Cornell LII).
• An appeal waiver does not cover everything. In Garza v. Idaho (2019), the Court held 6 to 3 that a lawyer must file a notice of appeal when the client asks, even after an appeal waiver (Cornell LII).
• You can still challenge the law itself. In Class v. United States (2018), the Court held that “a guilty plea, by itself, does not bar” an appeal arguing that the law you were convicted under is unconstitutional (Cornell LII).
• Bad advice about a deal can be grounds for relief. In Lafler v. Cooper (2012), the Court held that a lawyer’s bad advice that led a client to reject a plea offer can violate the right to counsel (Cornell LII).

If You Are Offered a Plea Deal

What to ask and do when a plea offer comes in

You have an offer and a deadline

1. Get the offer in writing, and ask your lawyer which kind of deal it is: charge, recommendation or agreed sentence.
2. Ask what sentence you would likely face after a trial loss, and how strong the evidence is.
3. Ask what else the plea costs you: a record, a license, housing, custody, benefits or gun rights.
4. Ask whether the deadline can be extended if you need more time.

You are not a U.S. citizen

1. Tell your lawyer before you plead to anything. A plea can lead to deportation, and your lawyer must warn you about that risk.
2. Ask whether an immigration lawyer can review the deal, since the immigration result depends on the exact charge.

The Supreme Court held in Padilla v. Kentucky (2010) that defense lawyers must advise noncitizen clients about deportation risk.

You believe you are innocent

1. Say so to your lawyer, and ask what evidence they have seen and what investigation is still possible.
2. Ask whether a trial, a no contest plea or an Alford plea is realistic in your court.
3. Write down what you want to say at the plea hearing. The judge will ask whether you committed the crime.

You are in jail and want out fast

1. Ask your lawyer whether a bail review or release hearing is possible before you decide.
2. Ask how the deal will look on your record in a year, not just this week.

A plea to get out of jail sooner is a common and understandable choice, but a conviction stays long after the jail stay ends.

General information, not legal advice. Rules differ by state; ask your lawyer about your court.

Supreme Court Cases on Plea Bargaining

The Court has accepted plea bargaining as a lawful part of the system while slowly adding rules about how lawyers and prosecutors must handle it. In 1971 it called plea bargaining “an essential component of the administration of justice” (Santobello).

1. 1970 North Carolina v. Alford
2. 1971 Santobello v. New York
3. 1978 Bordenkircher v. Hayes
4. 2012 Missouri v. Frye
5. 2012 Lafler v. Cooper
6. 2018 Class v. United States
7. 2019 Garza v. Idaho

Supreme Court cases on plea deals, 1970-2019: 1970: North Carolina v. Alford (You may plead guilty while saying you are innocent, if the plea is voluntary and the evidence of guilt is strong.). 1971: Santobello v. New York (When a plea rests on a prosecutor's promise, "such promise must be fulfilled."). 1978: Bordenkircher v. Hayes (A prosecutor may carry out a threat to bring heavier charges if you refuse a deal.). 2012: Missouri v. Frye (Your lawyer must tell you about formal plea offers.). 2012: Lafler v. Cooper (Bad advice that leads you to reject a plea offer can violate your right to counsel.). 2018: Class v. United States (A guilty plea alone does not stop you from arguing on appeal that the law itself is unconstitutional.). 2019: Garza v. Idaho (Your lawyer must file an appeal if you ask, even when you signed an appeal waiver.).

Common questions

What You Can Do

1. Never decide on a plea without a lawyer. If you cannot afford one, ask for a public defender at your first court date. Our public defender guide explains how.
2. Ask your lawyer the questions above, in writing if you can, and keep a copy of any offer.
3. Know your rights before you talk to police. Anything you say can shape the offer. Our Miranda rights guide covers how to invoke silence.
4. Serve on a jury if you are called. Trials are rare, and juries are the check the 6th Amendment built in.
5. If your district attorney is elected, ask the candidates where they stand. Ask how their office uses plea deals and whether it publishes data on them.