Sentencing in an Era of Plea Bargains

Abstract

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor.

Zooming in on judges’ contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea bargained sentences in even the most restrictive jurisdictions. Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations. In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual’s sentence. In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent. In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals.

Keywords: plea bargaining, sentencing, judges, prosecutors, guilty pleas

JEL Classification: K00, K14, K33, K40, K42