CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, March 15, 2014

McConkie on Judges as Framers of Plea Bargaining

Daniel S. McConkie Jr. (Brigham Young University - J. Reuben Clark Law School) has posted Judges as Framers of Plea Bargaining on SSRN. Here is the abstract:

The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight. This presents significant issues concerning transparency, fairness, and effective sentencing. Federal prosecutors strongly influence sentences by the charges they select. The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure. Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence. The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials. What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback. 

This article explores a proposed procedure that would do just that. Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings. As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties. The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial. This increased judicial participation through a regularized, advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and likely sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions. Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty. In short, plea bargaining is here to stay, but criminal justice would be greatly improved by bringing more of the plea bargaining process back into the courtroom where the judge could help frame the key issues for the parties.

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Posted by: Team Member - Thomas R. Griffith | Mar 20, 2014 9:25:49 AM

Great article and topic worthy of follow ups and updates as things change. "In short, plea bargaining is here to stay," That's where you are wrong. The criminal justice system reformation movement includes the death of the plea bargain and the reinsertion of the 2 plea process. Guilty as charged & Not Guilty. Thanks.

Posted by: Team Member - Thomas R. Griffith | Mar 20, 2014 9:30:02 AM

My background includes more than 32 years as a daily newspaper editor, which hopefully identifies me as an observer who at least understands how objectivity is supposed to work. That said, after studying the federal justice system for several years now for a book project, I've come to view plea-bargaining as a less-violent but no less sinister step up from the rubber-hose and phone-book beatings resorted to in earlier times as the preferred means of coercing confessions. Does plea bargaining work? Magnificently -- especially for prosecutors. Is it fair? Don’t be silly.

Posted by: John Kerr | Mar 24, 2014 10:59:10 AM

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