Plea Agreements and Suspending Disbelief

11 Pages Posted: 6 Sep 2024

See all articles by Sam J. Merchant

Sam J. Merchant

University of Oklahoma College of Law

Date Written: August 11, 2024

Abstract

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker. Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence. The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged. Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Keywords: Plea agreements, judicial discretion, Booker, Sentencing Guidelines, Federal Sentencing Guidelines, Sentencing Commission, Plea bargaining

Suggested Citation

Merchant, Samuel, Plea Agreements and Suspending Disbelief (August 11, 2024). Available at SSRN: https://ssrn.com/abstract=4922697 or http://dx.doi.org/10.2139/ssrn.4922697

Samuel Merchant (Contact Author)

University of Oklahoma College of Law ( email )

300 W Timberdell Rd
Norman, OK 73019
United States
405-325-4779 (Phone)

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