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April 10, 2023

"Sentencing in an Era of Plea Bargains"

The title of this post is the title of this notable new paper authored by Jeffrey Bellin and Jenia Iontcheva Turner now available via SSRN.  Here is its abstract:

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge.  Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors — who control plea terms — as the decider of punishment.  This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor.

Zooming in on judges’ contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea bargained sentences in even the most restrictive jurisdictions.  Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations.  In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual’s sentence.  In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent.  In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals.

April 10, 2023 at 02:29 PM | Permalink


Umm, if the defendant thinks the offer is too harsh they can always refuse and go to trial.

Posted by: Soronel Haetir | Apr 10, 2023 3:26:06 PM

That prosecutors are the “decider of punishment” is demonstrably untrue. The defendant chooses his own punishment when he signs the plea deal.

It’s as much a denial of fact as gender not being binary.

Posted by: TarlsQtr | Apr 10, 2023 6:12:25 PM

Suppose prosecutor says in a letter to defendant and his counsel: "Defendant will face 130 years of mandatory time if you go to trial on all counts of superceding indictment but 'only' 15 years agreeing to plead guilty." Defendant says he is prepared to plead guilty, but only if much shorter sentences are possible. Who is fairly described as deciding the punishment under these circumstances?

Posted by: Doug B | Apr 10, 2023 6:21:30 PM


Who are you responding to?

In the end, the defendant can choose to force the government to prove his guilt and get nothing if innocent.

Posted by: TarlsQtr | Apr 10, 2023 7:31:28 PM

The defendant can choose to contest guilt at trial and/or can advocate for his sentence/punishment to the prosecutor in the plea process and to the judge in the sentencing process. But the defendant never gets to "choose" his own sentence/punishment, though he can choose to accept the punishment offered by the prosecutor in a plea deal.

This article is about "Who imposes sentences" and notes who any sentencing/punishment choice ultimately depends on the prosecutor and/or judge, though the defendant can also choose to resist the punishment pursued by the prosecutor and will usually will get much longer sentence as a result (recall Jared Stephens who you think deserved the 150 years he got from the Florida judge because he did not like the offer of the prosecutor).

Posted by: Doug B | Apr 10, 2023 9:27:06 PM

Refusing to use my pronouns is a type of misgendering. What it does to me can be seen here: https://www.instagram.com/p/B_jZaQTBAGK/

Again, you can plead not guilty, go to trial, and win the case. The punishment you choose is zero.

If you decide to enter a guilty plea, you are always putting yourself at the mercy of others. It’s still your choice whether to do it though.

Posted by: TarlsQtr | Apr 10, 2023 10:00:44 PM

And all along, Master Tarls, I thought you just wanted to identify as a juvenile, though your affinity for instagram authority is telling.

On topic, at issue here is not a defendant's choices about accepting or disputing guilt; the article is about "Who imposes sentences?" once guilt is established one way or another. When you say "you are always putting yourself at the mercy of others" upon pleading guilty, you are plainly acknowledging that some "others" and not the defendant is selecting the sentence/punishment. That is what this article is exploring.

The article is not disputing that choices about accepting or disputing guilt are made by the defendant; the article is discussing "Who imposes sentences?" -- and it rightly recognizes that defendants can influence the sentence-selection process, but that prosecutors and judges are ultimately the sentence selectors.

Posted by: Doug B | Apr 10, 2023 10:16:00 PM

TarlsQtr: Again you assume that any innocent person will be found innocent in a trial. I think it's more accurate to say that any non-wealthy accused person is highly likely to be found guilty whether actually guilty or not. For an innocent person with a public defender to be found not guilty is about as common as someone with untreated cancer surviving due to a spontaneous remission. It happens, but it's rare.

Posted by: Keith Lynch | Apr 11, 2023 12:35:52 AM

Professor Berman, you are ignoring the fact that plea negotiations are not one-sided. Defendants can, and often do, make counter offers -- I am not willing to plead guilty to X and take twenty years, but I am willing to plead to Y and take ten years.

Admittedly, in most cases, the prosecution makes the initial offer although I have had cases in which inmates serving a sentence on one case from a different county reach out to propose a disposition of their other cases.

The bottom line is that a defendant who pleads guilty is just as much choosing his punishment as is the prosecutor who enters the plea agreement. That's not to say that the bargaining power is equal. In some cases, the evidence is strong enough and the potential punishment is high enough that the prosecution can make a substantial "take it or leave it" offer. In other cases, the evidence is weak enough that the defendant can basically set the terms of the plea agreement.

Of course, some statutory schemes increase the risk of going to trial over what might be available in a plea offer. But those statutes typically involve potential "enhancements" or lesser-included offenses. My experience when I worked on a code revision commission was that the defense bar was all for increasing the number of enhancements or lesser-included offenses because they felt that legislature would impose the same range of punishment for the "top offense" regardless of how broad or narrow it was. By adding additional elements to the top offense, they allowed most offenders to be facing a lower range of punishment, and, if the prosecution charged the top offense, they could suggest a plea to one of the lesser offenses or, if the case went to trial, convince a jury that their client was only guilty of the lesser offense.

Posted by: tmm | Apr 11, 2023 10:57:10 AM

As I noted above, tmm, the "defendant can choose to contest guilt at trial and/or can advocate for his sentence/punishment to the prosecutor in the plea process and to the judge in the sentencing process." And, tmm, I do agree that when the evidence is weak and/or the prosecution is not too motivated to pursue a particular sentence, then the defendant can have a lot of sway concerning the plea particulars.

But your final sentence highlights that all the defense negotiation/advocacy in the plea process is shaped by the charging and bargaining choices of prosecutors. The federal CP statutes are good examples, where the exact same behavior can have a 5 year MM (for receipt) or no minimum (for possession). If a prosecutor decides to charge and not bargain off the receipt charge, there is no way a defendant can choose a sentence below 5 years in prison. Tha defendant certainly can urge the prosecutor to drop the receipt charge down to possession, but that choice is solely for the prosecution to make.

Posted by: Doug B | Apr 11, 2023 1:28:47 PM

While every case is different, I think that describing what the defendant/defense counsel does as advocating and what the prosecutor does as choosing does not accurately reflect what is going on. Both sides "choose" what they want to have happen and advocate to try to convince the other to accept that outcome. If they can't reach an agreement, the court/jury chooses the outcome.

The laws governing the potential penalties and the strength of the evidence influences how the negotiations occur, but neither side has the ability to force the other to accept a specific outcome. Both sides have the ability to choose whether to take a maximalist position (which the other side can't force them to change) or make concessions. For example, while the government has the ability to charge the highest potential charge, the government can concede that a lesser charge is appropriate and only pursue that. On the other hand, a defendant can concede that they are only guilty of a lesser offense. The government can't force a defendant to concede that they are guilty of a lesser offense (even if that is the "best" option for the defendant) just like a defendant can't force the government to limit the charges to a lesser offense (even if the lesser offense is more appropriate).

Posted by: tmm | Apr 11, 2023 5:02:35 PM

All this angst is created by walking past the central question: Is the defendant guilty or not? If he is, he should say so. Honesty and all that. If he's not guilty, he should say THAT. Same principle. Falsely denying guilt routinely is punished, as it should be. Accepting responsibility for your behavior is routinely rewarded, as it also should be.

I know, I know. I'm being "simplistic." Better to be sooooooooo much more sophisticated and worldly, blah, blah, blah, and view it all as a cagey game in which truth is just a ghost.

That may be the defense bar's take on it, sure -- which is one reason I never became a defense lawyer.

Posted by: Bill Otis | Apr 11, 2023 5:27:21 PM

Keith Lynch,

Of course, you show no evidence that the innocent poor are “highly likely” to be found guilty in a jury trial.


We finally agree on something. Making up pronouns is juvenile. You cannot have any idea about the depths I can go to be juvenile, so keep my pronouns coming.

Posted by: TarlsQtr | Apr 11, 2023 10:08:58 PM

TarlsQtr, you wrote:

> Of course, you show no evidence that the innocent poor are "highly
> likely" to be found guilty in a jury trial.

Not just poor. Anyone who can't afford a multi-million-dollar
"dream team" of lawyers, investigators, and expert witnesses.

What could possibly count as evidence of that to you? Anyone who is
convicted who continues to claim to be innocent, you would dismiss
as a liar, even though there's no benefit to a person who makes that
claim after they've exhausted their appeals. All the world loves a
redemption narrative and hates an innocence narrative.

And if someone *is* eventually exonerated, you could say he was almost
certainly guilty anyway.

And even if someone is exonerated after being proven innocent beyond
all doubt, you could say that that's a freak occurrence, no matter how
often that happens. Or even that that's a proof that "the system
works," even if it comes after he has spent half his life in prison
and gets no compensation for it.

Seriously, what could possibly ever count as evidence of that to you,
to Federalist, or to Mr. Otis? I'd have an easier time convincing
a devoted Communist that Communism sucks.

Posted by: Keith Lynch | Apr 13, 2023 12:00:22 AM

Keith Lynch --

Your claim is that anyone who can't afford a multi-million-dollar "dream team" of lawyers, investigators, and expert witnesses is likely to be found guilty even when innocent. What this necessarily means is that a majority of defendants who are not wealthy but actually innocent get convicted.

TarlsQtr asked you to provide evidence for this claim. You provide none whatever, instead diverting the question to what TarlsQtr (and federalist and I) would count as evidence.

Produce some and find out. You made the claim. Back it up.

Posted by: Bill Otis | Apr 13, 2023 12:09:47 PM


As Bill noted, it’s not really my job. Your post is just a sorry attempt to deflect your inability to provide evidence.

Posted by: TarlsQtr | Apr 15, 2023 10:49:20 PM

I won't waste my time unless one of you says what they would accept as evidence. Life is too short to waste arguing with the likes of religious zealots, flat-earthers, or vaccine deniers. If my claim is wrong, why do defense attorneys almost always counsel their innocent clients that if they go to trial, they will lose? And why are they almost always proven right in the cases where the client does go to trial despite their advice?

Of course you'll just claim that innocent clients are as imaginary as unicorns. Even the ones who were subsequently exonerated, often after spending decades in prison.

Posted by: Keith Lynch | Apr 17, 2023 8:03:07 AM

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