Victim Participation in the Plea Negotiation Process in canada

4. Federal Rule 11: A Viable Legal Framework For The Regulation Of Plea Bargaining? (cont'd)

4.3 Federal Rule 11 and the United States Sentencing Guidelines

It is critical to appreciate that the guilty plea provisions, enshrined in Rule 11, must be read in the context of the federal sentencing guidelines (Dick, 1997, p. 1030). The United States Sentencing Guidelines were issued under the authority of the Sentencing Reform Act of 1984 (18 U.S.C. 3551–3585; Herman, 1997, p. 77). The Act established the United States Sentencing Commission, which was assigned the onerous task of drafting the Guidelines. In November of 1987, the Guidelines became effective and their effect was to severely circumscribe the pre–existing range of judicial sentencing discretion by "closely tying sentences to the charges of which defendants are convicted" (Taha, 2001, p. 251). One of the primary goals of the Sentencing Guidelines was to put an end to the "widely divergent sentencing practices," which had been fostered by a system of indeterminate sentencing in which judges and parole authorities exercised a relatively untrammeled degree of discretionary power (Karle & Sager, 1991, p. 396). The Guidelines, therefore, implemented a system of determinate sentences and established a "limited range of prison terms, within which the judge could impose a sentence" (Karle & Sager, 1991, p. 397). The trial judge may only depart from this range if she gives a "legally sufficient reason" for doing so (a decision that is open to review by an appellate court) (Herman, 1997, p. 78; Karle & Sager, 1991, p. 397). In 1999, 64.9% of sentences in the federal courts were within the prescribed guideline range. In 34.5% of cases, there was a "downward departure" from the guideline range and in only 0.6% of cases did the courts impose an "upward departure." (U.S. Sentencing Commission, 1999 Datafile, OPAFY99, Table 4).

Table 4 - Percent of Offenders Receiving Each Type of Departure

Graph showing Percent of Offenders Receiving Each Type of Departure

Table 4 Description

Table 4 represents the percentage of offenders receiving a sentence within the range established by the US sentencing guideline and those receiving a sentence that depart from this range (years 1995 to 1999). It is important to note that the percentage of offenders receiving a sentence with the range decreased slightly over the years. While it was representing more 70% of all cases in 1995, it was down to 64% in 1999. As a result, the percentage of downward departure (sentence under the guideline range) slightly increased and was representing 34% in 1999. Finally, upward departure (sentence over the guideline range) represented less than 1% every year.

The Sentencing Guidelines unequivocally recognize the inherent legitimacy of the plea bargaining process and provide concrete incentives to those accused persons who plead guilty. For example, 3E1.1 makes explicit provision for a sentence discount where the accused "clearly demonstrates acceptance of responsibility" for commission of the offense. Similarly, under 5K.1.1, an additional discount may be given where the accused has provided "substantial assistance" to the authorities (in relation to "the investigation or prosecution of another person who has committed an offense"). In 1998, such a discount was given to defendants in 18.7% of all sentences handed down by the federal courts (see Table 4).

Nevertheless, while the Guidelines are, in certain respects, "plea–bargaining friendly," the Sentencing Commission was charged with the task of developing standards that would guide judges in making the decision whether or not to accept a plea bargain. In this respect, it is exceptionally noteworthy that the Commission's "Commentary" to the Sentencing Guidelines (Chapter 6, Part B) indicates that Congress expected judges "to examine plea agreements to make certain that prosecutors have not used plea bargaining to undermine the sentencing guidelines." Pursuant to this mandate, it is significant that 6B1.2 of the Sentencing Guidelines sets out certain "Standards for Acceptance of Plea Agreements". These standards are designed to diminish the extent to which the parties to a plea agreement may manipulate its content in order to avoid the imposition of an appropriate sentence under the Sentencing Guidelines (Dick, 1997, pp. 1039–41). For example, the Policy Statement in the Guidelines indicates that a "Type B" or "Type C" plea (sentence bargain) agreement may be accepted by the trial court – provided that the relevant sentence falls "within the applicable guideline range" or "departs from the applicable guideline range for justifiable reasons" (emphasis added).

Furthermore, where a "Type A'" plea agreement (a charge bargain) is involved, the "Policy Statement" stipulates that the court may accept the agreement if, "for reasons stated on the record," it determines that "the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines." [22] In other words, the trial court must actively inquire whether the charge(s) laid by the prosecutor constitute a fair reflection of "what actually happened" in the case (Dick, 1997, p. 1040; Taha, 2001, p. 251). For example, trial judges are supposed to closely scrutinize any plea agreements, reached in relation to alleged drug offences, in order to ascertain whether the charge(s) laid by the prosecutor may be deemed appropriate in light of the actual quantity of drugs found on the defendant at the time of his or her arrest (Karle & Sager, 1991, p. 404). This particular scenario was played out in U.S. v. Eirby (2001), where the accused – having willingly entered into a "Type B'" plea bargain – proceeded to plead guilty to a charge of conspiracy to distribute cocaine base. However, the pre–sentence investigation report indicated that the accused was actually in possession of a greater quantity of crack cocaine than had been indicated either in the indictment or in the plea agreement. Possession of this greater quantity of the drug would have rendered the defendant liable to conviction of a more serious offence, carrying a more severe sentence. The accused was given the opportunity to withdraw his guilty plea but he ultimately declined to do so and was sentenced to a longer prison term than had been envisaged in the original "Type B'" plea agreement. [23] The Court of Appeals for the First Circuit rejected Eirby's appeal, noting (para. 23) that the trial judge had warned the accused that the penalty stated in the plea agreement was not sustainable in light of the finding as to the quantity of drugs in his possession and that Eirby had declined the opportunity to withdraw his guilty plea. Cases such as Eirby dramatically demonstrate the extent to which, under the Sentencing Guidelines, the trial courts are encouraged to closely monitor the contents of the plea bargains that are fashioned by prosecution and defence attorneys.

The task of ensuring that the contents of a plea bargain are compatible with the established facts of a case is greatly facilitated by 6B1.4 of the Guidelines, which makes provision for a plea agreement to be accompanied by a written stipulation of the facts that are deemed to be relevant to sentencing. Stipulations made under this provision must:

  1. set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics;
  2. not contain misleading facts; and
  3. set forth with meaningful specificity the reasons why the sentencing range resulting from the proposed agreement is appropriate.

Where the written stipulations prove the commission of more serious offences than the offence(s) of which the accused was actually convicted, then the trial judge must apply the sentencing guideline that is applicable to the more serious offences (1B1.2(a)). [24] However, there is a limit to the application of this provision: as the Commentary on this guideline indicates (para. 1), the sentence that the court may impose is limited to "the maximum authorized by the statute under which the defendant is convicted."

Furthermore, the Guidelines ((1B1.2(c)) state that, if a plea agreement contains a stipulation that specifically establishes the commission of additional offences, then the court must determine the sentence "as if the defendant had been convicted of additional count(s) charging those offense(s)."

One of the most noteworthy constraints that the Guidelines place upon the application of Federal Rule 11 involves the use by the trial courts of the pre–sentence reports, which are prepared by an independent agency – the U.S. Probation Office. The Sentencing Guidelines (6A1.1) state that, in most cases, a probation officer must conduct a "presentence investigation and report to the court before the imposition of sentence" (emphasis added). In practice, such a report is, indeed, prepared and submitted to the court "in the vast majority of cases" (Herman, 1997, p. 158). It will be recalled that Federal Rule 11(e)(2) stipulates that, when the prosecutor and defence attorney notify the court that a "Type A" or "Type C'" plea agreement has been reached between the parties, "the court may accept, or reject the agreement, or may defer its decision until there has been an opportunity to consider the presentence report" (emphasis added). This suggests that the court has inherent discretion whether or not to defer making a decision about the acceptability of a plea agreement until after it has considered the pre–sentence report.

However, the Sentencing Guidelines (6B1.1(c)) explicitly state that the trial court is required to defer rendering this decision until after it has had an opportunity to consider the pre–sentence report. The fact that an independent pre–sentence report will be made available to a trial judge before she considers the acceptability of a proposed plea bargain necessarily suggests that it should be considerably more difficult for the prosecutor and defence lawyers to distort, or withhold, relevant information from the court.

It should be noted that, under the provisions of Rule 11, it is possible for the trial court to accept the accused's guilty plea while – simultaneously – deferring its decision concerning the acceptability of the proposed plea agreement. If the trial court, having read the pre–sentence report, decides to reject the plea agreement, then Rule 11(e)(4) clearly stipulates that the defendant must automatically be given an opportunity to withdraw his or her guilty plea and that the court must warn the defendant that, should he or she persist in the guilty plea, "the disposition of the case may be less favorable to the defendant than that contemplated by the agreement." However, the accused does not have an automatic right to withdraw a guilty plea during the period in which the court has deferred making a decision whether or not to accept or reject the plea agreement: indeed, withdrawal during this period may only be permitted where the accused proves that there is a "fair and just reason for doing so" (as stated in Federal Rule 32(e)).

The implications of this particular aspect of the application of Rule 11 are well–illustrated by the case of United States v. Hyde (1997), in which the accused had entered into a "Type A" plea agreement (charge bargain) with the government prosecutor. After concluding that the accused was "pleading guilty knowingly, voluntarily, and intelligently" and that "there was a factual basis for the plea," the District Court accepted the guilty plea but deferred making a decision concerning whether or not to accept the plea bargain until after the completion of the pre–sentence report. Before the Court had made its decision concerning the acceptability of the plea bargain, the defendant sought to withdraw his guilty plea. The court held that there was no "fair and just reason" for withdrawing the guilty plea, accepted the plea agreement and proceeded to sentence the defendant. Ultimately, the U.S. Supreme Court ruled that the District Court had been correct in its ruling that the accused had no absolute right to withdraw his guilty plea and that he had not shown any "fair and just reason" to do so (in accordance with Rule 32(e)).