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May 19, 2011

Should the federal system welcome and encourage more plea deals with binding sentencing terms?

The question in the title of this post is prompted by (1) my presence at the USSC Annual Conference at which I will be discussing plea bargaining on Friday, and (2) this new article on SSRN by Wes Porter titled "The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker." Here is the article's 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 Bookerseemingly 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).

I am eager to hear from practitioners whether they agree with this article's endorsement and recommendation for "increased use of binding plea agreements in federal court."

May 19, 2011 at 01:22 AM | Permalink


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personaly i think a plea agreement WITHOUT a binding sentence in it. is CRIMINAL on the part of any defense lawyer who agrees to me!

Posted by: rodsmith | May 19, 2011 2:02:03 AM

So, uh, yeah, defendants aren't limited to the Guidelines, which make us look good cause it's so damn tough on crime, so let's try and intimidate them into forgoing that freedom.

Posted by: NickS | May 19, 2011 9:51:36 AM

I seek 11(c)(1)(C) agreements all the time. My last deal was for a 30-year old career offender who was facing 31 years. The binding plea got it down to 12.

The problem from the defense perspective is to get the AUSA to agree to such a deal in the first place.

The next step is to get the judge to go along with the deal. That doesn't always work out because the probation officer writing the PSIR prepares an excellent character asassination undermining the deal. Then for whatever reason the judge backs out.

Posted by: K | May 19, 2011 11:04:49 AM

well K the way to get the DA and the judge to go along is simple! EVERY case for the next 60 - 120 days GOES TO TRIAL. after that i'm willing to take bets they will be on bended knee begging for deals!

Posted by: rodsmith | May 19, 2011 6:12:43 PM


That type of behavior disserves the client. And disserves the system -- which was never set up to have a continuous onslaught of trials. You might want to read One Just Man by James Mills, ISBN # 0671218379 to get an idea of the problems.

Moreover, in my 20 plus years of practice it appears that judges and prosecutors will marginalize a lawyer who conducts himself in that matter. I represent clients not causes. And unless you are a federal defender the average attorney in federal court does not have that many active cases to pull off such a stunt.

Posted by: k | May 20, 2011 8:52:20 AM

hmm K this is interesting!

"which was never set up to have a continuous onslaught of trials."

I pray you DON'T really belive that. Since last time i looked the constitution REQURIED a "trial by a JURY of your peers" I.E. a wait for it a TRIAL!

As for a disservice to the system! sorry i'm not here to serve the system! The system is here to SERVE ME!and the rest of the public!

Right now the SYSTEM is a joke in the united states and AROUND the world!

The system i.e. the judges, da's and defense lawyers took something that was put in place even though it's not LEGALLY allowed ...THE PLEA BARGAIN! but was to be used in limited instances where the case would be almsot impossible to prove and could result in a threat or danger to the victims to allow the defendanct to plead out to a reduced term to spare the state and victium a trial.

now it's OVERUSED in 99.9999999% of all trials instead of what was contemplated which would be the reverse of those numbers!

as for being a stunt. was gandi's non-violent resistence or mlk's walk stunts! No they were a non-violent way to protest intolerable illegal conditions!

plus of course i'd hardly call DEMANDING your CONSTUTIONAL RIGHT TO A TRIAL A STUNT!

Posted by: rodsmith | May 20, 2011 9:44:43 PM

How many judges would we need if 99% of cases went to trial?
How many courthouses would we need if 99% of cases went to trial?
How many jurors (Citizens taken away from their jobs and paid dirt) would we need if 99% of cases went to trial?
Who is going patrol the streets when all the cops are sitting at the courthouse waiting to testify?

Please design a system (and a pocketbook) that can handle jury trials in 99% of cases and articulate it. Maybe we can have a constitutional convention and enact the rodsmith amendment to operationalize trials for everybody.


A lawyer advocating all his clients (especially the obviously guilty) DEMAND their CONSTUTIONAL RIGHT TO A TRIAL is A STUNT! It disserves the client because there is always a trial tax imposed by the judge for a person who goes to trial and loses.

Posted by: k | May 21, 2011 10:39:25 AM

guess what K if every crime WENT TO TRAIL maybe just maybe the feds and state would remove the 1,000's of laws that dont' have REAL VICTIMS!

they would have no problem handling the load then.

besides i dont' need to suggest a new sytem. The ONLY LEGAL one is already in the constitution. the one that REQURIES a trial of a jury of your peers!

Posted by: rodsmith | May 21, 2011 2:56:27 PM

Great article. Obviously, defense attorneys should all try to get the DoJ to take a binding plea agreement. Since the number of above-guideles sentences is only in the 2% range, however, it's not a significant inducement for a defendant at this point in time. If you care more about your defendant that a "cause," but the odds of an above-guidelines sentence is small, then your client will likely choose to risk a plea with a non-binding agreement. If district judges start handing down a higher percentage of above-guidelines ranges, however, then it will be more and more likely that defendants will not want to risk open plea agreements.

So we have an interesting situation. Most "variances" are below-guidelines. DoJ doesn't like this, but it doesn't destroy the current plea mill, because defendants still have a significant interest in pleading to non-binding plea agreements. If a greater likelihood of above-guidelines sentences in non-binding plea cases leading to more trials (or defendant demands for binding plea agreements), the DoJ will have to move toward more binding plea deals. So, strangely, it might be pro-defendant (as a class) for district judges to start sentencing more defendants to above-guidelines sentences. This would lead to more binding plea agreements, and it would reduce the role of the Probation Office.

Posted by: Mark Pickrell | May 22, 2011 9:58:07 PM

In his initial comment, K hits on one of my central points in the article: in the mandatory Guideline era, the Guidelines disfavored binding plea agreements and, now, prosecutorial misperceptions, institutional stigmas, and outdated standards for judicial acceptance interfere with the use of "C" pleas in appropriate cases. I merely advocate that, through specific statutory, rule and policy changes, this tool be made available to the parties.

Some offices and individual prosecutors may avoid binding pleas all together. Some defendants always will want to leave it to the court. Some defendants, however, may opt for a known, below-Guideline sentence, rather than, a statistical chance at a below-Guideline sentence with a strong likelihood of a no break, within-Guideline sentence. In the right case, that desire could be, and I believe should be, part of the plea discussion.

I agree with some of Mark's comment, yet, for many defendants, a binding plea agreement could represent their best chance at a guarenteed benefit from the applicable Guideline range, particularly against the "risk" of no break at all. Court don't have to give more above-range sentences for defendants and their attorneys to consider exploring agreed-upon results below the Guidelines. Thanks to all for the discussion.

Posted by: Wes Porter | Jun 6, 2011 2:51:57 AM

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