Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky
St. Louis University Public Law Review, Forthcoming
20 Pages Posted: 14 Aug 2011
Date Written: August 9, 2011
This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.
PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence. The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made. Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea. This means that all parties are pleading in the dark – they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts. While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded. Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.
This essay also suggests that, in accordance with existing law, PSRs should identify collateral consequences and other legal restrictions which are not nominally part of the criminal sentence, in order to provide a guide for a defendant's conduct (18 U.S.C. 3563(d)), and to establish the defendant's post-release financial condition for purposes of calculating restitution and fines. (Fed. R. Crim. P. 32(D)(2)(A)(ii).).
Keywords: sentencing, plea bargaining, pre-sentence reports
JEL Classification: K14, K41
Suggested Citation: Suggested Citation