"Fact Bargaining" under the Sentencing Guidelines: The Role of the Probation Department

Abstract

from sentencing courts. Probation Officers com plained that prosecutors routinely bury evidence in their files in the interest of protecting the plea. And they maintained that even when confronted with conflicting information uncovered in the presentence investigation, the courts consistently accept the par ties' fact stipulations and disregard the true extent of the offense behavior. Not surprisingly, these com plaints arose from a context in which the probation officers had calculated a harsher guideline sentence than that anticipated by the parties and ultimately imposed by the court. What is most interesting about the survey, from a defense attorney's perspective, is that it appears to reflect a consensus among probation officers that they have a greater understanding of the facts of a case than do the actual parties to the litigation. Implicit in the responses is their self-image as protectors of the guidelines. The role assumed by probation officers under the guidelines, whether intentionally or not, has created a tension with counsel that is rarely dis cussed openly. This article suggests that a hidden message may lie in the survey's results. Rather than reflecting widespread fact manipulation and dishon esty, the probation officers' anxiety about fact bar gaining largely reflects a pervasive law enforcement bias within the U.S. Probation Service itself.