Get the Facts on Plea Bargaining

Abstract

Imagine teaching a graduate seminar on sentenc ing. How will you explain the varied characteristics and historic development of determinate structures nationwide? One possibility is to ask your students to think of determinate as having expanded from one to three dimensions. The earliest determinate schemes simply assigned a particular point of punishment for any given conviction. The two-dimensional advance was the guideline system, in which two axes representing crime severity and prior record formed the now-famous grid. The third step was the three-dimensional system, in which particular facts of the case ? the social space surrounding a criminal act ? are injected into the appropriate block of the grid and structure the determinate sentence. The federal guidelines are the only example of this comprehen sive approach, and they represent the most well developed and innovative thinking about determi nate sentencing. This structure also provides an historic opportu nity to regulate the processes that produce sentences: plea negotiation and plea agreements. Only in the federal system do particular facts of a case math ematically influence the guideline sentence. They are part of the record, and their impact is clear for all to see. And truth in sentencing under the Sentencing Reform Act of 1984 applies as much to pretrial process as to parole dates. ? plea agreement is the outcome of the only adversarial factfinding many cases get. Considering the impact of facts on the guideline sentence, it is not an overstatement to say, in those cases, that plea bargaining is sentencing. Yet it is troubling that the court and the public usually do not know the circumstances that produced the plea agreement. If judges are to avoid abdicating their roles, they must inquire carefully into the facts underlying guilty pleas. Under Rule 11, and with the help of diligent probation officers, that is exactly what judges usually do. But guilty pleas often obscure the facts, and it is also possible that a judge will not search for them. In a fact-driven guideline system in which many evidentiary factors may modify the base offense level, this may foster the very disparity and lack of accountability that the guidelines were designed to eliminate.