Plea Bargaining: What Can and Can’t Be on the Table?

Can a prosecutor threaten more serious charges if the defendant refuses to agree to a plea bargain? Can a plea bargain include a promise by the State to be more lenient on the defendant’s wife? Read on for answers.


Plea negotiations may include discussion of the possibility that in exchange for the defendant’s guilty or no contest plea, the prosecutor will not charge, will dismiss, will move for the dismissal of other charges, or will recommend or not oppose a particular sentence. G.S. 15A-1021(a). Restitution or reparation may be part of the plea arrangement. G.S. 15A-1021(c). The prosecution may condition a plea offer on the defendant providing information to the prosecution, Woodson, 287 N.C. at 593, rev’d on other grounds, 428 U.S. 280 (U.S. 1976), or on truthful testimony in criminal proceedings. G.S. 15A-1054(a).

Due process isn’t violated when the prosecutor legitimately threatens a defendant during plea negotiations with institution of more serious charges if the defendant doesn’t plead guilty. See Bordenkircher, 434 U.S. at 365. If the defendant declines to plead guilty, no constitutional violation occurs when the prosecutor carries out that threat. See id at 360, 365; see also United States v. Goodwin, 457 U.S. 368, 380-84 (1982).

Leniency for Third Parties

Although a prosecutor’s offer of leniency to a person other than the defendant has withstood a due process challenge in North Carolina, see State v. Summerford, 65 N.C. App. 519, 521-22 (1983); see also State v. Salvetti¸ 202 N.C. App. 18, 31-32 (2010), the U.S. Supreme Court has indicated that offers of more lenient or adverse treatment of a third party might require heightened scrutiny. See Bordenkircher, 434 U.S. at 364 n.8 (such an offer “might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider”). Applying the Court’s cautionary note some jurisdictions have approved plea deals that include such terms. See, e.g., Harman v. Mohn, 683 F.2d 834, 837-38 (4th Cir. 1982).

“Package” Pleas

In a “package” plea all defendants must agree to the bargain before any will be allowed to benefit from it. As has been observed:

Consistent with the package nature of the agreement, defendants’ fates are often bound together: If one defendant backs out, the deal’s off for everybody. This may well place additional pressure on each of the participants to go along with the deal despite misgivings they might have.

United States v. Caro, 997 F.2d 657, 658-59 (9th Cir. 1993) (footnote omitted). Relying on authority from other jurisdictions, the North Carolina Court of Appeals has rejected the argument that package pleas are per se involuntary. State v. Salvetti, 202 N.C. App. 18, 31-32 (2010). Although other jurisdictions also have approved of package pleas, see, e.g., United States v. Morrow, 914 F.2d 608, 613-14 (4th Cir. 1990); United States v. Clements, 992 F.2d 417, 419 (2d Cir. 1993), some have required the trial court to be informed of the package nature of the plea so that it can engage in a “more careful” examination of voluntariness. Caro, 997 F.2d at 660. But see Clements, 992 F.2d at 419-20 (although “preferred practice” is to advise the court, the government’s failure to inform the trial court of the package nature of the plea did not mean that the trial court abused its discretion by denying a motion to withdraw the plea where the plea was otherwise voluntary).

Appeal & Related Waivers

Although no North Carolina courts have dealt with the issue in a published case, courts in other jurisdictions are split on whether the right to appeal may be waived as part of a negotiated plea. See 5 LaFave, Criminal Procedure § 21.2(b), at 581-87 (3d ed.). A number of courts, including the Fourth Circuit, have held that waiver of the right to appeal may be part of a plea bargain. See United States v. Davis, 954 F.2d 182, 185-86 (4th Cir. 1992); State v. LeMaster, 403 F.3d 216, 220 (4th Cir. 2005). Other courts conclude that this right is non-negotiable. See 5 Criminal Procedure § 21.2(b), at 583. Even if the term is permissible, some Fourth Circuit decisions have recognized a “narrow class of claims” that survive a general waiver of appellate rights. See LeMaster, 403 F.3d at 220 n.2 (for example, a claim that a sentence was based on an impermissible factor or a denial of counsel claim).

A number of federal circuit courts, including the Fourth Circuit, have held that a defendant may waive the right to collaterally attack a plea. LeMaster, 403 F.3d at 220 (citing cases).

Limits on Prosecutorial Conduct

A prosecutor should not seek to induce a plea of guilty or no contest by:

  • Charging or threatening to charge the defendant with a crime not supported by the facts believed by the prosecutor to be provable. Official Commentary to G.S. 15A-1021
  • Charging or threatening to charge the defendant with a crime not ordinarily charged in the jurisdiction for the conduct at issue.
  • Threatening the defendant that if he or she pleads not guilty, his or her sentence may be more severe than that which is ordinarily imposed in the jurisdiction in similar cases on defendants who plead not guilty.
  • Using or threatening to use the prosecutor’s statutory calendaring power to coerce a defendant to plead guilty. NC Defender Manual (Trial) 23 at 23-10 (citing North Carolina State Bar Ethics Opinion RPC 243 (1997).
  • Offering more advantageous pleas to the defendant in exchange for a donation to a specified charitable organization. (citing N.C. State Bar Ethics Opinion RPC 204 (1995).
  • Agreeing to refrain from informing the court of the defendant’s prior record. at 23-11.


Terms Contrary to Law

A plea agreement term that is contrary to law is unenforceable, State v. Wall, 348 N.C. 671, 676 (1998), and a plea agreement containing such a term is invalid. See, e.g., State v. Demaio, 216 N.C. App. 558, 565 (2011). When this is the case, the defendant is entitled to withdraw the plea. See, e.g., id. There is however one caveat to this rule. If the defendant is told that the particular term is likely to be unenforceable, its inclusion does not necessarily invalidate the plea. See, e.g., State v. Tinney, __ N.C. App. __, 748 S.E.2d 730, 733-37 (2013).