The two types of bargains negotiated in both the federal and state systems are:

• Charge bargains – A defendant will agree to plead guilty to a lesser charge, but will accept the maximum sentence for that lesser charge
• Sentence bargain – In exchange for a guilty plea, a prosecutor will offer to request a lower sentence for a defendant (i.e. not the maximum penalty).

Frequently a combination of the two bargains is developed.

In the state system, guilty pleas are preceded by plea-bargaining negotiations/agreements between the prosecutor, the defense attorney, and (sometimes) the judge. Before negotiations, the prosecutor and defense attorneys will share information through discovery. Based upon this information, the parties will attempt to negotiate a fair and rapid resolution. If the facts and legal issues raised are straightforward, the lawyers will agree upon a charge and/or sentence bargain. The bargain will be presented to the defendant, who may accept or reject it. If the defendant chooses to accept it, the “bargain” will be formally submitted to the judge, sometimes in writing. A court date will be set and the defendant will submit his plea in open court, where the judge will rule on the plea (according to the conditions previously outlined). Though not bound by the negotiated sentence, the judge will generally impose the recommended (reduced) sentence. If the prosecutor and defense lawyer are not able to reach an agreement, they may present the facts of the case to the judge, who will neutrally recommend an appropriate bargain. Either party may accept or reject this bargain. If at any time the defendant rejects a bargain offered, the lawyers may choose to continue negotiations or to prepare to go to trial.

In the federal system, plea “negotiations” are more formalized. In order to equalize sentencing nation-wide, the U.S. Legislature developed the Federal Sentencing Guidelines. Taking into account an individual’s past criminal history and the severity of his or her (new) crime, the Guidelines offer a range of sentences that can be imposed in exchange for a guilty plea. A federal prosecutor can, based on the guidelines, present a finalized, written plea bargain to a defendant, who may choose to accept, or not. There is little room for negotiation. Until recently, federal judges were strictly bound by the sentence ranges outlined in the Guidelines. In 2004, the Supreme Court ruled in U.S. v. Freddie J. Booker, that the Guidelines would guide rather than mandate sentencing, giving federal judges greater independence.