Wednesday, May 25, 2011
Wes R. Porter (Golden Gate University School of Law) has posted The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker (William Mitchell Law Review, Vol. 37, p. 469, 2010) on SSRN. Here is the abstract:
Binding plea agreements once served an important function of counterbalancing the vast judicial discretion at sentencing. The federal judiciary enjoyed wide discretion in imposing a sentence; the government and defendant’s freedom to contract for an appropriate sentence mirrored that discretion. The United States Sentencing Guidelines (the Guidelines) effectively replaced, and marginalized the role of, binding plea agreements. Binding plea agreements became a stigmatized novelty in federal criminal practice. The valuable tool has remained underutilized and unavailable to criminal defendants for more than 20 years.
Aside from its legislative goals of uniformity and proportionality, the Guidelines promoted predictability and informed decision-making for the defendant. In its 2005 decision in United States v. Booker, the Supreme Court relegated the Guidelines to a mere sentencing “consideration” and introduced a new process in federal sentencing. The sea change that resulted from Booker seemingly improved federal sentencing for the judiciary, the prosecution and the defense. After several years of “advisory Guidelines,” courts have exercised their discretion decidedly in favor of the criminal defendant imposing lower sentences than were called for when the Guidelines were mandatory. The fall of the Guidelines may benefit defendants statistically, yet the new process will never be as predictable and informative.
This Article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision-making for the defendant. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker. After years of isolated and inconsistent use, binding plea agreements could again restore some predictability and informed decision-making for the defendant. This Article proposes that Congress should enact a new standard for judicial acceptance of binding plea agreements post-Booker, as well as policy and perception changes. While binding plea agreements are not appropriate in most cases, the parties must be permitted to enter into agreements for a specific sentence that is “reasonable” and consistent with Congress’ original intent underlying Rule 11(c)(1)(C).