Document Type

Article

Publication Date

2011

Abstract

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. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, binding plea agreements will continue to be disfavored by some district courts, carry an unwarranted stigma among prosecutors, and remain underutilized and largely unavailable to criminal defendants.

Part II of this article presents a brief historical background of federal sentencing and the policy goals behind the Guidelines’ implementation. Part III discusses the binding plea agreement under Rule 11 of the Federal Rules of Criminal Procedure. This Part also explains how the mandatory Guidelines effectively replaced the binding plea agreement and how the Commission and the Department of Justice (DOJ) have marginalized the use of this valuable tool for more than twenty years. Part IV summarizes the constitutional challenge to judicial findings of sentencing enhancements that was ultimately struck down in Booker, as well as the disconnect between the constitutional challenge and the Court’s ultimate remedy of rendering the Guidelines “advisory.” This Part also discusses the current state of federal sentencing practice post-Booker in terms of renewed judicial discretion, the benefit to defendants, and liberated prosecutors.

Part V proposes that binding plea agreements should again become an integral part of federal practice. Last, Part VI proposes rule, policy, and perception changes that can assist in establishing a renewed role for binding plea agreements in federal criminal practice. These include proposed revisions to Rule 11 and the Guidelines’ treatment of binding plea agreements, a proposed model local rule, and sample plea agreement language, each designed to encourage the use of binding plea agreements after Booker. These changes are designed to promote predictability and informed decision making at sentencing.