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5 Things to Know About Plea Bargains

Sometimes, the best thing to do after someone has been arrested and charged with a serious crime (or crimes) is to work out a deal with the prosecutor rather than go to trial.  This is called “plea negotiations” or “plea bargaining.”

The result is the person does go before a judge for sentencing but the result is more favorable to him or her than it might have been if they had chosen to proceed to trial on all the charges they were facing.

Sure, cases get dismissed and charges are dropped.  But lots of criminal defense cases end in plea bargains or plea deals.

Plea bargaining may seem wrong – there are plenty of arguments against it since the accused is giving up constitutional rights like the right to a jury trial and the right to confront hostile witnesses.  However, it’s been approved by the Supreme Court of the United States as an acceptable practice and it happens every day in today’s state and federal criminal justice systems.  See, e.g., Brady v. United States, 397 U.S. 742 (1970).


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5 Things to Know About Plea Bargains

1. What is a plea?

Those who have been accused of a crime must respond to the charges brought against them.  They “plead” to the court, in legal terms.  The plea can be “not guilty” or “guilty” or “nolo contendre” (no contest).

Nolo contendre

When a defendant choses to plead “nolo contendre,” then he is not admitting to guilt.  It’s different than a plea of not guilty because he’s not going to contest the state’s case against him like he would if he pled “not guilty.”   It’s also different from a guilty plea because it can’t be used against the defendant in another case.

A plea of “nolo contendre” is allowed both in federal cases and under Texas law.  See, Texas Code of Criminal Procedure Art. 27.02.


In federal court, there is the possibility of an “Alford Plea,” too.  This is based upon the Supreme Court case North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).  In an Alford Plea, the defendant offers to plead guilty to a charge but maintains his innocence to that charge.

Texas is one of the states that will also allow an Alford plea.  Some states do not recognize this plea.

2.  What is a plea bargain?  It’s a contract.

Plea deals are negotiated between the prosecutor and the defense lawyer.  Once a plea bargain has been reached, it is taken to the judge for his or her approval.

The judge will consider the plea deal as a contract that has been entered into between the prosecutor and the defendants.  In federal court, the judge can approve the contract, or plea bargain, or not.

Usually the judge goes along with the plea agreement.  Failure of a judge to support the deal that has been struck between the state and the accused can be seen as damaging to the entire system of plea negotiations.  It rarely happens, but it can.  See, e.g., “Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing.”

3. Plea Agreements by Public Officials; Those Elected to Office; or Corporations

Special consideration is given to some defendants in plea negotiations.  Business entities (corporations) as well as judges, Members of Congress, and those elected to public office at state or local levels can enter into plea deals but there are special circumstances to be considered here.


First of all, corporations can be charged with crimes just like human beings can be charged.  For more detail, read the United States Attorneys’ Manual Section 9-28.000, “Principles of Federal Prosecution Of Business Organizations.”

Under federal law, corporate defendants are allowed to enter into plea negotiations.  However, it is the policy of the U.S. Attorney General as a general rule to not dismiss any charges against an individual defendant just because the corporation has entered a guilty plea.  United States Attorneys’ Manual 9-16.050.

Public Officials and Those Elected to Office

When someone has been elected by the people to represent them in government, and then that individual is charged with a crime, special considerations must be given to their situation.

In legal terms, there are considerations of things like separation of powers doctrine when a federal prosecutor goes after someone elected to state office.  Should the federal government be able to force the people’s choice from office in a plea deal?  It’s a controversial exertion of power, of course, but it happens.

Elected officials and public officers do get charged with crimes by federal and state prosecutors.  When this happens, they can enter into plea negotiations.  And plea bargains can include agreements by the accused to resign from office as well as agreeing never to seek election or appointment to another public office in the future.  See, Powell v. McCormack, 395 U.S. 846 (1969).

For more on public officials entering into plea agreements, read our past discussion in “Dennis Hastert Plea Deal: My Prediction Coming True and The Impact on Future Prosecutions” and “Texas Judge Suzanne Wooten Found Guilty of Bribery, Money Laundering & Plea Deal, No Jail Time.”

4.  Alternatives: Deferred Prosecution Agreements and Non-Prosecution Deals

In a plea bargain, the accused makes an agreement with the prosecution.  Sometimes, that agreement involves the defendant coming before the judge and “taking a plea,” or pleading guilty to a lesser charge as part of the agreement.

However, negotiations between the prosecution and the defense can result in other things for the accused.  Here, the case may not be filed, or the accused may not have to enter a plea in court.  In federal court, these are sometimes called “deferred and nonprosecution agreements (D/NPAs).”

Deferred Prosecution Agreements

A deferred prosecution agreement (DPA) is a deal where the prosecutor agrees to grant amnesty (or pardon) in exchange for the defendant agreeing to do certain things.   For instance, the accused may agree to pay restitution and cooperate with the authorities in order to get a DPA.  If the accused completes all the requirements of the agreement, then the charges against him are dismissed.  The DPA is filed in the criminal court records.

Non-Prosecution Agreements

A non-prosecution agreement (NPA) is not filed in the court record.  Here, the accused and the prosecution enter into an agreement where the prosecutor agrees not to file charges against the accused in exchange for certain things, like full cooperation with the authorities in a continuing investigation.

An example of an NPA can be found online in this letter from the Department of Justice regarding a medical company accused of various federal crimes.

5.  Paying Back in a Plea Bargain: Restitution and “Extraordinary Restitution”

As part of a plea bargain, a defendant may offer to pay money to victims or to charitable organizations as part of the deal for a lesser sentence.


In restitution, the accused agrees to pay a sum of money to the crime victim(s) as part of the plea bargain.  This amount is viewed by the prosecution as reparation of the harm suffered by the victim and therefore, acceptable as part of a plea deal.

Sometimes, restitution is required by law.  For instance, 18 U.S.C. § 3663A requires the defendant charged with crimes of violence to pay restitution as part of their punishment.  Here, the amount to be paid can be a part of the negotiation, even though restitution itself is mandatory.

Extraordinary Restitution

When the accused offers to pay money to a third party like a charity or college or community outreach organization as part of his plea bargain that is not considered to be basic “restitution” since the money isn’t going to a crime victim.

This is sometimes called “extraordinary restitution” even though nothing is being paid to the crime victim. It can happen under certain conditions in a plea bargain.  It can also be a payment made voluntarily by the accused as part of an argument for leniency in sentencing by the judge.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles,” Pre-Arrest Criminal Investigations” and “My Tip No. 8: Beware the Slow Plea in Criminal Defense of Felony Drug Manufacture or Distribution Cases.”



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