Fact bargaining is a type of
plea bargaining
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or '' nolo contendere.'' This may mean that the defend ...
that occurs when prosecutors and defendants bargain over what version of events should be stipulated to by the parties and presented to the court as what happened. Some statutes or
sentencing guidelines
Sentencing guidelines define a recommended sentencing range for a criminal defendant, based upon characteristics of the defendant and of the criminal charge. Depending upon the jurisdiction, sentencing guidelines may be nonbinding, or their applic ...
specify that certain increases or decreases in the sentencing range must occur if certain facts are proven. For example, a drug offense may carry a
mandatory minimum sentence
Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...
if the offender had a prior drug felony, possessed a certain amount of drugs or played a supervisory role in a drug conspiracy. The prosecutor may agree to stipulate that there was no such prior drug felony, that the offense less than the threshold amount of drugs, or that the offender played no such supervisory role in exchange for a
guilty plea
In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law (legal system), common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment ...
. Fact bargaining can also involve the defendant stipulating to certain facts in exchange for certain concessions so the prosecutor does not need to prove those facts.
Nancy King has argued that fact bargaining defeats the intention of the sentencing guidelines to have judges find facts. According to
William G. Young, fact bargaining "involves a fraud on the court as the government's recital of material facts during the plea colloquy and at sentencing necessarily must omit or at minimum gloss over facts material to sentencing. . . . . If fact bargaining is acceptable, then the entire moral and intellectual basis for the Sentencing Guidelines is rendered essentially meaningless." Judges rarely overturn stipulations reached by fact bargaining.
In some cases, "creative" plea bargains are reached in which the defendant pleads guilty to a totally different lesser crime. An example would be a robbery suspect pleading guilty to
copyright violation
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, su ...
.
References
{{Reflist
Pleas