Can A Judge Change A Plea Bargain At Sentencing?

Yes, but sometimes no.

I depends upon how the plea bargain was reached.

Sometimes the lawyers will confer with the judge during the negotiations period about “being bound” to the plea and agreed upon sentence.

In the article that follows, we’ll talk about how plea bargains are reached and whether a judge can change the plea bargain at sentencing.

Can A Judge Change A Plea Bargain At Sentencing? (EXPLAINED)


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What Is A Plea Bargain?

In a criminal case, a “plea bargain” is what we call an agreed upon resolution to a criminal case (or multiple cases).

This plea bargain usually involves a plea of guilty to a charge or multiple charges, in exchange for something.

The plea could also be a no contest plea, or even an Alford plea.

The prosecutor gets his guilty pleas, and then defendant gets something, such as:

  • dismissal of some charges
  • avoids the cost of trial
  • the prosecutor’s recommendation for a specific sentence, such as probation, a specific length of jail time, no fines, or fines in a certain amount

How Are Plea Bargains Achieved?

Behind the scenes of criminal cases, the lawyers are constantly talking about the case.

In general, in major criminal cases, negotiations wait until after the evidence has been reviewed so that the defendant can be apprised of his chances at trial before considering a plea deal.

But in low level misdemeanor cases, it is common for the prosecutor to offer the defendant a plea deal very early on in the case, sometimes even at arraignment.

Sometimes plea deals are achieved with phone calls or emails between lawyers.

Sometimes the parties attend a settlement conference with the judge to try and hammer out a resolution.

Does The Judge Have To Go Along With The Deal?

Absent a specific set of circumstances, the judge does not have to follow the negotiations in the case.

A change of plea and sentencing hearing usually goes something like this:

  • judge calls the case
  • the parties come to the counsel tables
  • one of the lawyers reads out all the negotiated details, including the disposition of the charges, the pleas the defendant is expected to enter, and the parties agreed upon sentence
  • the judge asks opposing counsel if the recitation of the details is correct
  • the judge asks the defendant if the recitation of the details is correct
  • then the judge takes the plea(s) from the defendant
  • once the pleas are entered, the judge proceeds to the sentencing phase, unless the parties want to postpone it
  • at sentencing, the judge hears the facts of the case from both sides
  • the judge gives the victim (if there is one) a chance to speak
  • the judge gives the defendant a chance to speak
  • the judge makes a decision about sentence and the defendant is sentenced

Judges in most instances will follow the negotiated terms, but here are a few instances when the judge might not:

  • the punishment does not fit with the facts in the case (like the judge is appalled after the recitation of what the defendant did)
  • the victim wants to see something more serious and persuades the judge that the sentence is too light
  • the defendant does not show remorse, or continues to claim his innocence, or offends the judge in some way with his speech

When Does The Judge HAVE To Adhere To The Plea Bargain?

There is only one instance that I know of where a judge has to follow the terms of the plea deal, and that is if and when the judge agrees to be “bound” by the negotiations.

In this situation, the judge will agree to deliver the agreed upon sentence in court.

Sometimes the agreement by the judge to be bound is just want to the defendant needs to feel comfortable entering a plea.

(It is quite scary to put your fate into the hands of someone else).

To agree to be bound though, judges need the parties to do several things in advance of the hearing:

  • provide the judge with a candid recitation of the facts so that the judge understands what the defendant has been accused of (sometimes judges will refuse to be bound to the sentence once they hear about what the defendant was alleged to have done)
  • provide the judge with the agreed upon terms of the deal (specifics already ironed out so there are no surprises)
  • provide the judge with a confirmation that the victim is on board (or not) with the deal

Judges do not want to be surprised by the facts at the sentencing hearing.

I have seen a judge who agreed to be bound change his mind during a sentencing hearing on the grounds that the facts provided to him in advance were not the same as the ones presented at the sentencing hearing.

But rather than issue his own sentence, he allowed the defendant to withdraw his previous plea of guilt, and ended the hearing without sentencing the defendant.

While a judge can agree to be bound, he will also act within his own conscience.

And if he cannot in good conscience follow the terms of the deal, he won’t.

Wrap Up

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can a judge change a plea bargain at sentencing