Key Takeaways
- Around 98% of federal criminal cases in America resolve through plea bargains, compared to roughly 78% guilty plea rates in English magistrates’ courts
- Oklahoma defence attorneys handle everything from police station to trial, whilst England and Wales operates a split profession where solicitors and barristers divide these responsibilities
- The Goodyear indication system (R v Goodyear [2005] EWCA Crim 888) allows English judges to indicate maximum sentences upon defendant request—fundamentally different from American prosecutor-led bargaining
- England and Wales offers a structured one-third sentence reduction for early guilty pleas under Sentencing Council guidelines, whilst Oklahoma plea deals involve direct negotiation between defence and prosecution
- The “trial penalty” in American courts averages three times higher sentences after trial versus plea—a coercive element English courts have historically tried to avoid
Why These Systems Developed So Differently
My friend who practises as a Tulsa defense attorney once explained something that stuck with me about how differently our systems approach the question of guilt. In Oklahoma, like most American jurisdictions, The plea bargain is now the main way to settle criminal cases in Oklahoma and most other parts of the US. It is not an alternative to trial; it is basically a replacement for it. The American Bar Association’s report from 2023 said that the federal plea rate was 98% and the state courts’ plea rate was around 95%.
England and Wales went a different way. According to data from the Crown Prosecution Service, 78.6% of magistrates’ court cases ended with a guilty plea in 2019/20. This happens a lot here, but the system was built on different ideas about how that process should work. In the past, English law was wary of judges getting involved in plea talks because it could be seen as coercive. The important case R v Turner [1970] said that judges shouldn’t give hints about what sentence they might give because they might pressure innocent defendants into pleading guilty.
That strict ban got less strict with R v Goodyear in 2005, but even now, the English way of doing things puts more emphasis on the defendant’s choice than the prosecutor’s leverage. This might seem naive to an Oklahoma lawyer who sees prosecutors stack charges to get a deal.
The Split Profession and What It Means for Plea Negotiations
One of the most significant structural differences affects who actually handles a criminal case at different stages.
In Oklahoma, a defence attorney typically:
- Represents the client at the police station during questioning
- Handles all pretrial hearings and motions
- Negotiates directly with prosecutors on any plea deal
- Conducts the trial if the case proceeds that far
- Argues sentencing if there is a conviction
This unified approach means one lawyer builds the complete relationship with the client and understands every aspect of the case from arrest through resolution.
England and Wales operates through what we call the split profession, with around 17,000 practising barristers and 163,000 practising solicitors dividing legal work between them. In criminal matters:
- A solicitor is typically the first point of contact, attending police stations, taking initial instructions, gathering evidence, and corresponding with the Crown Prosecution Service
- A barrister may be instructed for Crown Court advocacy, providing written opinions on case strength, and conducting trials
- The solicitor retains conduct of the case as the “litigator” whilst the barrister “advises” both the solicitor and the defendant
This division means plea-related discussions potentially involve multiple lawyers at different stages. A solicitor might discuss case strength with the client early on, but a barrister’s opinion on prospects at trial could significantly influence whether a guilty plea makes sense. The barrister who will actually conduct the trial may not meet the client until close to the hearing date.
Solicitor advocates with higher rights of audience have blurred this distinction somewhat since the Courts and Legal Services Act 1990, but the traditional division persists in most serious Crown Court work.
How Plea Bargaining Actually Works in Oklahoma
The American system of plea bargaining operates through direct negotiation between defence counsel and prosecutor. A defendant charged with first degree burglary facing 7-20 years imprisonment might be offered a plea to second degree burglary with 5 years. The defence attorney’s job involves:
- Assessing the strength of prosecution evidence
- Understanding the particular prosecutor’s tendencies and the judge’s typical sentencing patterns
- Advising the client on the likely trial outcome versus the offered deal
- Negotiating for reduced charges, sentence recommendations, or dismissal of other counts
The Oklahoma Policy institute has pointed out that this leads to power imbalance. In almost 80 percent of the jails, the prisoners are awaiting the resolution of their cases in jail not due to their conviction but due to their inability to pay the bail. It is leverage that is such pretrial detention: a defendant who is desperate to get back to family and employment can accept a deal just to leave jail, whether his or her defences are viable or not.
A study conducted by the Vera Institute revealed that pretrial detention leads to a defendant being more likely to plead guilty (46 percent more likely). The National Association of Criminal Defense Lawyers explains the difference between the offer at plea and post trial sentences as the trial penalty as up to eight or ten times in federal cases. Even an innocent defendant, when presented with such odds, might do the rational calculation that it is better to take the deal than to run the risk of the decades-long trial.
The Goodyear Signal: The English Nation Two Sided Retaliation
England and Wales lacks the plea bargaining as practised in America. We are, rather, dealing with a system of advance sentence indications, which are governed by R v Goodyear [2005] EWCA Crim 888 and are today included in paragraph 9.4 of the Criminal Practice Directions.
The key differences from American plea bargaining:
- Defendant-initiated, not prosecutor-driven. A Goodyear indication must be requested by the defence. The judge cannot offer one unsolicited, and the prosecution cannot negotiate sentence terms directly. This preserves the principle that pleading guilty should be the defendant’s voluntary choice rather than a response to prosecutorial pressure.
- Maximum sentence indication only. The judge indicates the maximum sentence that would be imposed if the defendant pleads guilty at that stage—not a negotiated outcome but a judicial assessment.
- Conducted in open court. Unlike closed-door American plea negotiations, the English procedure happens transparently in court proceedings.
- Not binding if rejected. If the defendant chooses to go to trial after receiving an indication, the indication ceases to have effect and cannot bind subsequent sentencing.
- Requires agreed factual basis. Normally, an indication should not be given until the prosecution and defence have agreed the factual basis of the plea. This prevents situations where defendants plead guilty to charges based on facts they dispute.
The Court of Appeal in Goodyear emphasised that “a defendant’s plea must be voluntary and free from improper pressure” and that judges “should not give unsolicited indications of sentence, as such indications could unduly influence the plea decision.”
Sentence Reduction for Guilty Pleas
Where England and Wales does offer clear incentives for early guilty pleas is through the Sentencing Council’s definitive guideline (Reduction in Sentence for a Guilty Plea, effective from 1 June 2017).
The structure is straightforward:
- First stage of proceedings: One-third reduction from the sentence that would otherwise be imposed
- After first stage but before trial: Maximum one-quarter reduction, sliding downward
- First day of trial: Maximum one-tenth reduction
- During trial: Reduction may be reduced to zero
The “first stage” means the first hearing at which a plea or indication of plea is sought and recorded by the court. For either way offences, this is up to and including the allocation hearing at the magistrates’ court. For indictable only offences, it is the first hearing at the Crown Court.
The guideline explicitly states that “the strength of the evidence should not be taken into account when determining the level of reduction.” This differs from American practice where overwhelming evidence often forms part of the negotiating dynamic—prosecutors may offer less generous deals when conviction seems certain.
The purpose is transparent: encouraging those who are going to plead guilty to do so early, sparing victims and witnesses from testifying and conserving court resources. But the reductions are capped and predictable rather than subject to individual negotiation.
The Trial Penalty Problem
American criminal justice scholars have increasingly focused on what they call the trial penalty—the substantial difference between sentences offered in plea bargains and sentences imposed after trial conviction. The National Association of Criminal Defense Lawyers found federal trial sentences average three times higher than plea sentences for the same offence, sometimes reaching eight to ten times higher.
This creates profound coercive pressure. As Chief Justice John Roberts acknowledged in Lee v. United States (2017), defendants often accept plea bargains they do not want because the alternative risk is simply too great.
The English system attempts to avoid this dynamic through several mechanisms:
- Capped reductions. The maximum one-third reduction for early guilty pleas means the “penalty” for going to trial is limited and known in advance. A defendant cannot face vastly multiplied sentences simply for exercising their right to trial.
- Judicial sentencing independence. English judges sentence based on Sentencing Council guidelines for the specific offence, not based on what was offered in negotiations. The prosecutor does not recommend sentences in the American manner.
- Appellate oversight. The Attorney General can refer unduly lenient sentences to the Court of Appeal, but defendants can also appeal sentences they consider excessive. This provides checks in both directions.
- No charge stacking as leverage. Whilst prosecutors in England and Wales have discretion over charging, the pattern of filing multiple overlapping charges primarily as bargaining chips—common in American practice—is less prevalent.
What Defendants Actually Experience
For a defendant facing criminal charges, the practical differences play out significantly.
- In Oklahoma: From arrest, a single attorney builds the case. Plea negotiations happen through direct communication with the prosecutor’s office, potentially starting early in the process. The attorney can tell the client “they’re offering X years if you plead to this charge, but if we go to trial and lose, you’re looking at Y years.” The gap between X and Y may be substantial.
- In England and Wales: A solicitor handles the initial stages, potentially with police station attendance during questioning. As the case progresses toward Crown Court, a barrister may be instructed. The defendant learns about possible sentencing through reference to published Sentencing Council guidelines and may seek a Goodyear indication from the judge. The choice to plead guilty or proceed to trial carries a known, limited sentencing consequence—up to one-third difference, not multiples.
Both systems process most cases through guilty pleas. But the pathway to that plea, and the pressures surrounding it, differ substantially.
Resources for Further Reading
For those wanting to explore the legal frameworks in more detail:
England and Wales:
- Sentencing Council Reduction in Sentence for a Guilty Plea Definitive Guideline (sentencingcouncil.org.uk)
- Criminal Practice Directions paragraph 9.4 on Goodyear indications
- Crown Prosecution Service guidance on acceptance of pleas and prosecutor’s sentencing role (cps.gov.uk)
- R v Goodyear [2005] EWCA Crim 888 full judgment
United States/Oklahoma:
- American Bar Association Plea Bargain Task Force 14 Principles (2023)
- Oklahoma Indigent Defense System annual reports
- Vera Institute “In the Shadows” plea bargaining research (2022)
The Bigger Picture
These systems reflect different assumptions about how criminal justice should balance efficiency against defendant rights. The American approach prioritises moving cases through overburdened courts, accepting that prosecutorial leverage—including the trial penalty—serves this efficiency goal. The English approach maintains more formal protections against coercion whilst still incentivising early guilty pleas through predictable, limited sentence reductions.
Neither system is without problems. American scholars increasingly argue the trial penalty has effectively eliminated the constitutional right to trial for most defendants. English practitioners note that even with capped reductions, the pressure to plead guilty affects vulnerable defendants who may not fully understand the proceedings or their options.
What remains clear is that understanding these differences matters—both for practitioners working across jurisdictions and for defendants navigating systems that, despite surface similarities in conviction rates, operate on quite different principles.