A plea bargain is a contract, and contracts can be broken. This article reviews how a plea bargain might be breached and the possible remedies when they are.
The majority of criminal cases are resolved through plea bargains (also called “plea agreements” and “plea deals”) as opposed to trials. Processing cases in this way—without a full trial—helps courts clear cases quickly, which reduces costs and increases the efficiency of the criminal justice process. The rules of plea bargaining, and the remedies available when a plea bargain is broken, vary by jurisdiction and even among judges in the same courthouse.
What Is a Plea Bargain?
A plea bargain is an agreement between a prosecutor and a criminal defendant. Plea bargains provide a benefit to both parties. Generally, the defendant receives a lesser penalty than might result after a conviction at trial. Meanwhile, the prosecution gets a guaranteed conviction and doesn’t have to spend the public’s limited resources on a trial. (The criminal legal system is funded with tax dollars. And trials—though necessary to advance fairness in our system—are expensive).
The specifics of plea deals vary from case to case. But typically, a defendant agrees to plead guilty to one or more charges in exchange for receiving some benefit from the prosecutor. For example, a prosecutor might agree to:
- dismiss some of the charges, including sentence enhancements
- reduce a charge to a lesser offense
- make favorable recommendations regarding sentencing
- not oppose a defendant’s sentencing request, or
- refrain from filing additional charges.
In addition to pleading guilty to one or more charges, a defendant might agree to do something like:
- testify against someone at trial
- provide information about other crimes, or
- complete a treatment program.
The terms of plea bargains vary depending on the circumstances. For example, a prosecutor might offer more favorable terms if the evidence against the defendant isn’t particularly strong or the defendant’s criminal record is minimal.
How Are Plea Bargains Broken or Breached?
Once a defendant enters a guilty plea under a plea bargain and the judge accepts it, the parties are bound by the agreement. The failure to comply with the agreement's terms constitutes a “breach” (break) of the deal. A plea bargain can be breached by the defendant, prosecutor, or judge.
Breach by the Judge
A judge can breach a plea bargain if they make incorrect representations or don’t inform the parties of the “material” (important) terms of the plea agreement. For example, a judge breaches a plea agreement by failing to advise a defendant of mandatory sentencing terms or incorrectly representing that the law allows a certain type of sentence.
Other breaches occur when the judge imposes a sentence that’s different from the terms of the agreement. Generally, judges don’t have to accept a plea bargain that’s been negotiated by the prosecutor and defendant. But if the judge approves the terms of the agreement, they can’t change the terms at sentencing. For example, if the prosecutor and defendant agree to a sentence of two years, and the judge accepts the defendant’s guilty plea under that agreement, the judge can’t impose, say, three years.
Breach by the Prosecutor
Because pleading guilty requires a defendant to voluntarily, knowingly, and intelligently waive certain constitutional rights, a waiver induced by an unkept promise is invalid. So, when a defendant pleads guilty in reliance on a prosecutor’s promises, those promises must be fulfilled.
A prosecutor might breach a plea bargain by breaking a promise to:
- recommend a specific sentence
- take no position on sentencing, or
- dismiss certain charges.
The defendant is ordinarily entitled to a remedy (more on that below) even when the prosecutor’s breach is unintentional and in good faith.
Breach by the Defendant
A breach of the plea bargain by the defendant might occur if the defendant refuses to testify against an accomplice as agreed (or gives perjured testimony), or misrepresents their identity to enter a plea agreement with a prosecutor.
What Happens When Someone Breaks a Plea Agreement?
Courts treat plea bargains as an enforceable contract for which a legal remedy is provided in the event of a breach. The remedies available for the breach of a plea bargain are:
- withdrawal of the defendant’s guilty plea
- rescission (cancelation) of the plea agreement, or
- specific performance of the terms of the plea agreement, meaning the deal must be honored.
The remedy available depends on the jurisdiction, nature of the breach, and which party breached the plea deal.
Defendant’s Remedies
If the prosecutor or judge breaches the plea agreement, the defendant is generally entitled to withdraw the guilty plea or have the agreement specifically enforced.
When a defendant withdraws their guilty plea, the original charges are normally reinstated. The defendant can then enter a new plea or proceed to trial. If the case goes to trial, any incriminating statements the defendant made during plea negotiations are usually inadmissible at the trial.
The remedy of specific performance fulfills the defendant’s expectations under the plea bargain. In other words, the terms of the plea bargain are enforced. For example, if a prosecutor breached the plea agreement by filing additional charges, specific performance would require the dismissal of those charges. Similarly, if the government breached its promise to make a favorable sentencing recommendation, specific performance would require that the defendant be resentenced by a different judge and that the prosecutor make the favorable recommendation.
Prosecutor’s Remedies
Typically, a prosecutor isn’t entitled to specific performance of the plea deal because the government can’t require a criminal defendant to plead guilty.
However, when the defendant breaches a plea agreement, the prosecutor is generally entitled to rescission of the agreement. This remedy relieves the government from its obligations under the plea bargain. The defendant will then face the possibility of a trial on all of the reinstated charges.
Before rescission of a plea bargain, the court must hold a hearing to determine whether the defendant breached the agreement.
Speak With an Attorney
Before agreeing to a plea bargain, speak with your attorney. If you don’t yet have an attorney it’s critical that you get one right away.
Regardless of whether you have a private criminal defense attorney or an attorney from the public defender’s office, most experienced criminal defense lawyers have seen their fair share of plea agreements. An attorney can advise you on whether, given the facts of your case, you should consider a plea bargain or go to trial. Also, a local attorney, who probably knows many of the judges and prosecutors, normally will be able to negotiate a much better deal than a defendant can on their own.