Legislatures create the systems for criminal sentencing and judges determine and impose criminal sentences. Yet, the criminal sentence for most defendants is decided outside of this process. The majority of criminal cases are resolved out of court via the plea bargaining process.

Plea bargaining is the negotiation of an agreement between the prosecutor and defense attorney whereby the defendant pleads guilty to a lesser offense or to one or some multiple offenses. Criminal defendants often enter into plea bargains in exchange for more lenient sentencing recommendations, a specific sentence, or dismissal of one or more of their charges.

Prosecutors have quite a bit of incentive to enter into plea bargain agreements. From the prosecutors perspective, a plea bargain avoids the risk of defeat at trial. This can be a powerful motivator for prosecutors who are elected by the public.

Prosecutors also enter into plea bargain agreements to dispose of cases. Most prosecutors have a high caseload. Disposing of cases can save time and even money for the government.

In addition, prosecutors often enter into plea bargains because it is the right thing to do. They may feel this compulsion given the facts of the case, or even respect (or even pity) for the criminal defendant (or the defense attorney).

Criminal defense attorneys often have just as strong incentives to advise their clients to enter into plea bargain agreements. Like prosecutors, defense attorneys may recommend plea bargains to avoid a defeat at trial, to help their client secure a better result, or even to maintain their working relationship with the prosecutor.

Having considered such weighty topics as the concept of guilt, the role of the jury, and criminal sentencing, we should direct our attention to what it means to commit a criminal offense. Let’s look at the basic elements for most criminal offenses.