Plea Bargaining

Most federal criminal cases never reach a jury. In fiscal 2022 about 90 percent of federal defendants pleaded guilty, about 8 percent had their charges dismissed, and only about 2 percent went to trial, where most were convicted. In a plea agreement the defendant admits guilt to some or all charges in exchange for concessions, such as dropping other counts, agreeing to a lower sentencing range, or recommending a lighter sentence. Defendants who help investigate others may receive cooperation agreements that let prosecutors ask for sentences below a mandatory minimum.

A judge must accept a plea in open court under Rule 11 of the federal rules, confirming that the defendant understands the charges and rights being given up and is pleading voluntarily with a factual basis. The Supreme Court upheld plea bargaining in Brady v. United States in 1970, held in Santobello v. New York in 1971 that prosecutors must keep their promises, and held in 2012 that defendants have a right to competent advice from their lawyers during plea negotiations. Judges are not bound by sentencing recommendations in most agreements.

Supporters say plea bargaining spares victims and witnesses the ordeal of trial, gives defendants certainty and lighter sentences, and makes it possible to handle tens of thousands of cases a year with limited courts. Critics say the gap between the sentence offered in a deal and the sentence threatened after trial, often driven by mandatory minimums, is so large that innocent people sometimes plead guilty, and that the system hands prosecutors far more power than judges or juries. Proposals include limiting mandatory minimums, recording negotiations, and requiring earlier sharing of evidence.