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Plea Agreements

While most Americans are familiar from movies with a trial, the vast majority of criminal cases in the United States are resolved by plea agreements or what attorneys sometimes euphemistically refer to as non-trial dispositions.

According to the New York Times, between 94 and 97 percent of cases are resolved by plea bargaining in the United States. The explanations are myriad:

  • Criminal penalties can be severe; plea agreements limit a client's exposure to a lengthy sentence
  • Court dockets are crowded with cases; plea deals help prosecutors manage caseloads
  • Juries are unpredictable; plea bargains allow parties to "meet in the middle"
  • Trials are expensive; plea agreements save the government time and money

General Plea Principles

At some point in the process, a client will be asked by a prosecutor how he or she pleads to the criminal charges.  This process is called an arraignment.  When a person announces his plea, he is telling the court whether he wishes to have a trial.

A plea agreement is an agreement signed by both the government and the individual whereby the defendant agrees to plead guilty and the government agrees to accept that plea in exchange for some sort of settlement.

In the North Carolina state system, a defendant will complete a plea transcript - a 4 page document - that announces the charges to which the person is pleading guilty, the maximum possible punishment, and the terms of the agreement. The form also includes questions the defendant must answer acknowledging the waiver of trial rights, and the voluntariness of his acceptance.  If accepted by the judge, a plea agreement is binding on the judge.

In the federal system, a plea agreement is roughly 8 to 10 pages long, and includes paragraphs outlining the defendant's acceptance of certain conditions, the government's agreement, and, in some cases, stipulations between the parties about certain facts that address sentencing factors.  A federal plea agreement is almost never binding on the judge.

North Carolina Plea Agreements

Plea agreements in North Carolina's state system are often characterized by a specific sentencing agreement that, if accepted by the court, binds the judge when he sentences the defendant.

A state plea agreement can involve:

  • the dismissal of certain charges
  • the reduction of charges to a lesser crime
  • a stated sentence or punishment
  • restitution amounts
  • no-contact provisions whereby the defendant agrees not to contact victims
  • an agreement by the prosecutor not to further charge the defendant with additional crimes

Unless the defendant pleads open, the defendant knows at the time he sits down with his lawyer what the general parameters of the agreement involve, and sometimes will know the specific punishment.

Sometimes the state and the accused cannot agree upon an acceptable plea bargain.  In those cases a defendant may wish to plead open.  An open plea is a guilty plea to all charges without the benefit of an agreement.  The open plea is simply an open admission of guilty, and an effort by the defendant to seek mercy from a sympathetic court.  Because open pleas do not require the state to agree to any terms, they are usually a last resort (short of trial) to resolve a case.

North Carolina prosecutors sometimes accept Alford pleas.  An Alford plea has the same practical effect as a standard plea agreement, except that it does not require the defendant to personally accept or admit guilt.  The Alford plea is used when the defendant maintains innocence, but wishes to accept a plea deal because the deal itself is too good to pass up, and because there is sufficient evidence whereby the defendant could be found guilty by a jury.

Federal Plea Agreements

Federal plea bargaining is an entirely different animal, characterized by what is generally called "charge bargaining."  In a case involving multiple counts or possible statutory enhancements, the Government can entice the defendant to plead guilty by offering to dismiss some counts in exchange for a guilty plea to other counts.

Charge bargaining does reduce the defendant's exposure, particularly in cases where charges involving mandatory minimums are dismissed by the prosecutor.

Federal plea bargaining may also include cooperation agreements.  These agreements, if accepted by the client, require the client to participate in debriefs by federal agents, testify truthfully at trials, and provide information about any criminal activity know to the client.

A federal plea agreement often includes certain stipulations - or stips - whereby the parties agree to factors that represent a partial sentencing agreement.  Even where these stipulations are present, the Government usually maintains its power to ask for a higher sentence.  And ultimately these stipulations can be rejected by the sentencing judge.

While federal plea agreements can bind a judge, the type of plea agreements used in the Eastern District of North Carolina almost never invoke that Rule of Criminal Procedure.  As a result, plea agreements are non-binding on the court.

Unlike state court where the entry of a plea agreement is often immediately followed by sentencing, the defendant will appear in federal court at his arraignment (also called a Rule 11 hearing) at which time he will plead guilty.  Sentencing will be scheduled three months out so that a Pre-Sentence Investigative Report (PSR) can be prepared by the Probation Office and so that the parties can gather information and prepare memoranda to the court to inform sentencing.


Plea agreements have grown in importance as criminal dockets grow more crowded, and punishments grow harsher. The advent of the federal sentencing guidelines in the 1980s and mandatory minimums in the 1990s empowered prosecutors whose charging decisions shape the case. By charging a defendant with multiple counts, a prosecutor can make trial risky for the defendant who faces extraordinarily high punishment.

Even in the state courts, which are more balanced in power distributions, plea agreements drive much of the process.  Effective plea negotiation requires a defendant who is willing to have a trial if the agreement is not reasonable, and an attorney who is comfortable as a trial lawyer to put pressure on the prosecutor to resolve a case as favorably as possible for his client.