Guilty Plea: Plea Bargaining

The statute that created the U.S. Sentencing Commission in 1984 directed it to promulgate policy statements concerning the acceptance or rejection of plea agreements by judges. The legislative history of this statute revealed Congress's concern that plea bargaining could undermine the equality in sentencing it sought to achieve. When the Commission submitted its Sentencing Guidelines to Congress in 1987, however, it declared: "The Commission has decided that these initial guidelines will not in general make significant changes in current plea negotiation practices . . . . The Commission will collect data on the courts' plea practices and will analyze this information . . . . In light of this information and analysis, the Commission will seek to further regulate the plea agreement process as appropriate" (U.S. Sentencing Commission, p. 1.8). Thirteen years after this statement, the Commission apparently was still studying the issue. With one unimportant exception, state sentencing guidelines have imposed no limits on plea bargaining at all.

Sentencing guidelines have tended to transfer sentencing discretion from judges to prosecutors. Indeed, guidelines that appear to mandate tough sentences but leave plea bargaining unconstrained sometimes mimic the "good-cop, bad-cop" stratagem for obtaining confessions at the stationhouse. The sentencing commission, the "bad-cop," threatens the accused with harsh treatment. The prosecutor, the "good-cop," then offers to save the accused from the threatened guidelines sentence in exchange for a plea of guilty. Substantial sentencing discretion remains—except for defendants who exercise the right to trial.

Of course much depends on the extent to which prosecutors do approve less severe treatment than sentencing guidelines prescribe when defendants plead guilty. Federal prosecutors seem to have undercut guidelines less than state prosecutors, and although researchers have discovered at least occasional guidelines evasion through plea bargaining in every federal district studied, the extent of this evasion varies substantially from one district to the next (see Schulhofer and Nagel).