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March 4, 2020

"Deal Jumpers"

The title of this post is the title of this notable new article authored by Michael Cicchini now available via SSRN. Here is its abstract:

Fundamental fairness dictates that when a criminal defendant enters a plea in exchange for the prosecutor’s sentence concession, the defendant should actually receive the sentence for which he or she bargained.  Surprisingly, however, many states permit the judicial practice of deal jumping: the judge can accept the defendant’s plea, disregard the sentence concession that induced the plea in the first place, and then sandbag the defendant with any punishment the judge wishes to impose.  Worse yet, the hapless defendant is left without recourse, unable to withdraw his or her plea.

Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system—a system that relies on plea bargains for more than 95 percent of its convictions.  To ensure fairness, transparency, and integrity in plea bargaining, state legislatures should eliminate deal jumping and require judges to approve or reject sentence concessions at the same time they approve or reject charge concessions: before accepting the defendant’s plea.  Alternatively, if a judge accepts the defendant’s plea but then decides to exceed the agreed-upon sentence, the defendant should be allowed to withdraw his or her plea and proceed to trial.

Legal reform to eliminate deal jumping is simple to implement and has garnered broad-based support; nonetheless, state legislatures often resist change, clinging blindly to the status quo.  Therefore, this Article also provides defense lawyers with a practical plea-bargaining strategy to protect their clients.  Defense counsel should consider invoking little-known but effective legal rules — rules which exist in many states — to constrain judicial abuse, provide greater certainty at sentencing, and even ensure the defendant receives the actual benefit for which he or she bargained.

March 4, 2020 at 04:04 PM | Permalink


The "deal jumping" describe above is specifically not allowed in Pennsylvania. A defendant who enters into a plea agreement, agrees to plea to specific charges for a specific sentence. The judge can always refuse to accept the sentence, but then the defendant may withdraw his/her plea of guilt. A "open plea" or charge bargain does not allow the defendant to withdraw his plea as the prosecutor is only making a recommendation. All of this is explained to the defendant prior to the Judge accepting the guilty plea.

Posted by: Dennis Skayhan | Mar 4, 2020 4:45:56 PM

We had a fascinating kind of "deal jumping" occur here in Kentucky about 10 years ago. In Kentucky, there is no statute of limitations on felonies. Two local school teachers were prosecuted 40 years after the fact for having sexually molested and abused a teen-aged girl during Middle School and High School years, with the sexual exploitation continuing for several years after the victim had graduated from high school. Initially, the victim was molested and abused by a female teacher, beginning at the age of 14. Although her Mother had psychiatric problems, she complained directly to the Fayette County Superintendent of Schools, Guy Potts, Ph.D. about what she suspected was being done to her daughter. Dr. Potts had an investigation performed internally, but never reported the Mother's complaint to law enforcement, as he was statutorily obligated to do. That omission tolled the civil statute of limitations, so that the victim was able to recover a $3.9 civil judgment against the Board of Education 40 years later. Except for a $1,500 deductible, the judgment was paid by an insurance company. In the criminal proceedings, the Commonwealth cut a sweet plea deal with the woman who had initiated the abuse, and then passed the victim off to a male teacher (from her swingers group), when the victim matriculated to high school. In exchange for her testimony against the male teacher at his trial (which was held), the Commonwealth promised the female teacher that she would not have to serve any jail or prison time. The male teacher was convicted at trial, and the jury recommended a sentence of 6 years. Under Kentucky law, the Judge was constrained to sentence the male teacher at or below the 6 years recommended by the jury. At sentencing, the Judge did not mince his words. Although he imposed a 6 year sentence, he told the man that if it was up to him alone, he would have imposed a life sentence. He called the man a monster and said that he should never walk the streets of Kentucky ever again as a free man. When the female teacher's case came on free sentencing based upon her plea deal, the Judge refused to accept the plea. He stated from the bench that her crimes were reprehensible and required jail time. This placed the Commonwealth in a difficult position, as thee woman had already testified at the man's trial and had fully performed her part of the plea deal. So, the Commonwealth dismissed the felony charges against the woman and filed a criminal information charging her only with misdemeanors, which under Ky. law are punishable by up to 12 months in jail only. The Commonwealth recommended 60 days' incarceration and 90 days of home confinement (as I recall). The Judge called the victim, then in her 50s, up to the bench for a private conference and asked her if the proposed sentence was acceptable to her. She told the Judge that she needed to get on with her life and put the entire ordeal behind her, so the Judge imposed the recommended sentence. The defendant did not get the full benefit of her plea agreement with the Commonwealth (no jail time), but given the nature of the crimes and the number of years for which they continued, the Commonwealth was naive to think that any Judge would ever agree to no jail time. This plea deal was not well thought out by the Commonwealth.

Posted by: James Gormley | Mar 5, 2020 10:34:04 AM

The rules in Missouri appear to be similar to Pennsylvania. If there is a binding deal, the judge must give the defendant the opportunity to withdraw his plea if the judge decides not to follow the sentencing recommendation. If there is no binding deal, the judge must explain at the time of the plea that the judge is free to impose any sentence within the range of punishment and the defendant will not get a chance to withdraw her plea even if the judge imposes a sentence at the high end of the sentencing range (or exceeds whatever sentence the State might recommend at the sentencing hearing).

Posted by: tmm | Mar 5, 2020 11:01:18 AM

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