The Balance of Power To Bargain

Abstract

As the closing chapter of a book on the history of plea bargaining, I have undertaken a study of bargaining under the U.S. Sentencing Guidelines. Many commentators have argued that the Guidelines have shifted some measure of sentencing discretion from judges to prosecutors. These arguments, which I think are largely right, almost always focus on sentencing after trial. Commentators have said less about sentences awarded after guilty pleas, though they account for more than 96 percent of all federal sentences. Commentators generally have overlooked prosecutors' expanded bargaining power because, I believe, they always have regarded plea bargaining as the preserve of prosecutors. In fact, however, the Guidelines have notably altered the dynamic of plea bargaining in American courts. A critical feature of the growth of plea bargaining in the nineteenth century was the increasingly prominent role played by judges. By the late twentieth century, a rather stable power balance had evolved in which judge and prosecutor both held substantial discretion to set the sentence awarded in the course of a plea bargain. Most significantly, both prosecutor and judge usually had the power to offer the defendant a sweeter deal than the other thought right. Defendants therefore had two bargaining partners and were free to solicit the best deal either would offer. The Guidelines altogether upset this power balance. Except in unusual situations, they have left judges unable to offer defendants better deals than the prosecutor thinks fit. This power shift almost certainly has contributed (along with other causes) to the striking increase in the length of federal sentences since the Guidelines took hold. And it may be the primary reason why plea bargaining accounts today for substantially more federal criminal adjudications than in pre-Guidelines days. During the last decade of the twentieth century, the rate of federal criminal trials fell from sixteen percent of adjudicated cases to only six percent - a drop of more than three-fifths. This chapter explores the causal connections between these trends and the new imbalance of bargaining power.