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National Crime Victim Law Institute

Additional Vocabulary: What is the difference between “plea bargaining” and a “plea agreement”?

December 10, 2012

Plea bargaining is the process where the prosecution and defendant negotiate the terms of a plea agreement.  During plea bargaining, the prosecution offers to dismiss or reduce charges against the defendant in exchange for the defendant pleading guilty and waiving his right to a trial.  In addition, the prosecution may offer to recommend a particular sentence, or agree not to oppose defendant’s request for a sentence.  Some of the factors that the prosecution and defendant each weigh during this process as they each decide whether to proceed to a plea agreement are: 1) the amount and quality of the evidence against the defendant; 2) potential defenses to the charges; 3) the amount of time a trial will take; 4) the amount of time defendant will serve in jail/prison; and 4); the effect of the case on the victim.  Plea bargaining ends when the plea agreement is reached.

The “plea agreement” is a contract between the prosecution and defendant that clearly lays out the terms that were reached during the plea bargaining process.  At an entry of plea hearing, the defendant will change his/her plea to “guilty” and the plea agreement is presented to the court.  Depending on the jurisdiction, this agreement may be binding on the court– a trial judge may be required to accept the terms of the agreement—or the court may have some discretion to: 1) reject the plea agreement; 2) discuss alternatives to the plea agreement that are acceptable to the court; or 3) accept the plea agreement.   In some jurisdictions, even where the court accepts the plea agreement, the court has discretion to sentence the defendant to any sentence allowable under the sentencing guidelines regardless of what was recommended in the plea agreement.  If the court rejects the plea agreement, the defendant may withdraw the guilty plea.