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)

4.4 Empirical Research: Plea Bargaining and Sentencing Guidelines in the Federal Court System of the United States

It is not entirely clear what the impact of the Sentencing Guidelines has been on sentencing in the federal courts. It has been suggested that, "by closely tying sentences to the charges of which defendants are convicted, the guidelines severely constrained judicial sentencing discretion" (Taha, 2001, p. 251). An empirical study by Karle and Sager (1991) found that the Sentencing Guidelines had effectively reduced the extent of sentencing disparity in the federal courts: indeed, trial judges had responded positively to the introduction of the Guidelines by sentencing defendants "within a more limited range" (p. 420). The study also discovered that the judicial application of the Guidelines had effectively implemented Congress' goal of increasing the harshness of sentences for drug offences (Karle & Sager, 1991, p. 420). However Karle and Sager (1991, p. 420) also found that, while there had been an overall reduction in sentencing disparity, there were nevertheless significant differences in the sentencing patterns of individual trial judges and of the District Courts in different geographical areas. Most of the individual and local disparities stemmed from the exercise by trial judges of their discretion to depart from the usual sentencing range prescribed by the Sentencing Guidelines (Karle & Sager, 1991, p. 433).

For present purposes, the most pressing question is what effect the Sentencing Guidelines have had on plea bargaining practices under the mechanism established by Federal Rule 11? It has been suggested that the Guidelines have imposed strict sentencing rules that fail to take into consideration the dynamics of the plea negotiation process [25] (Bibas, 2001). There have also been predictions to the effect that the Guidelines would seriously interfere with plea bargaining by reducing the incentives that are available to the courts as a means of inducing accused persons to plead guilty (Bibas, 2001; Karle & Sager, 1991, p. 394). For example, before the Guidelines were implemented, convicted persons, who entered guilty pleas, enjoyed the benefit of a 30 to 40% reduction in their sentences; however, with the advent of the guidelines, offenders who enter into a plea bargain can normally expect only a 20% reduction in their sentences (Karle & Sager, 1991, pp. 404–405). Furthermore, the discretionary powers of judges have been further constrained by the incorporation within the Guidelines of mandatory minimum sentences for certain offences. Significantly, some judges have publicly decried this "absolute restriction on discretion as incompatible with justice" (Karler & Sager, 1991, p. 429). In addition to prescribing minimum mandatory sentencing, the Guidelines follow a sentencing matrix [26] that focuses on the seriousness of the offence and the offender's criminal history, leaving little room for judges to be able to take into consideration the personal characteristics of the offender (Karle & Sager, 1991, p. 400 & 430). In short, by placing effective restrictions on the exercise of judicial discretion in sentencing, it may be argued that the Sentencing Guidelines "limited judges' ability to reward guilty pleas with reduced sentences" (Taha, 2001, p. 252).

In spite of the resolute reduction of judicial sentencing discretion that has been effected by the promulgation of the Sentencing Guidelines, it is significant that Karle & Sager (1991, p. 420) nevertheless found that plea bargaining rates "have not been measurably affected" by the application of the Guidelines by the federal courts(see also similar findings by Dunworth & Weisselberg, 1992; Heaney, 1991; Parent, et. al., 1996). However, this does not mean that the Sentencing Guidelines have not had any impact on the practice of plea bargaining established by Rule 11. What may have happened is that the nature of plea bargaining has been transformed by the Guidelines. As Taha (2001, p. 251) notes, the imposition by the Sentencing Guidelines of effective fetters on judicial sentencing discretion undoubtedly has the potential to shift a considerable degree of power to the prosecutor because she has the power to choose which charges are laid against defendants:

In theory, prosecutors can use this power in plea bargaining by agreeing to drop or not pursue some charges in exchange for defendants agreeing to plead guilty to lesser or fewer charges. This type of plea bargaining is called charge bargaining. Unfettered charge bargaining could result in judicial sentencing discretion just being replaced by prosecutorial charging discretion, undermining the guidelines' goal of ensuring similar sentences for similarly situated offenders.

Prosecutors are in a position to circumvent the Sentencing Guidelines because, the U.S. Sentencing Commission "decided to base the range of applicable sentences not on the consideration of an offender's real offense but on the charges of conviction" (Starkweather, 1992, p. 862). However, as noted above, the combined effect of Federal Rule 11 and the Sentencing Guidelines is to require the judiciary to ensure that the charges laid against the defendant fairly reflect the reality of what happened in the case. Furthermore, where the underlying facts in a case point to the commission either of a more serious offence than that which has been charged or of additional counts of the offence actually charged, then the court must take this into account and impose a more severe sentence. The independent pre–sentence report, the requirement that the court postpone its decision concerning the acceptability of a plea bargain until after it has considered the pre–sentence report and the provisions requiring stipulations of fact in the plea agreements all contribute to the power of the courts to control charge bargaining by the prosecution and defence attorneys.

Unfortunately, there is some empirical evidence to the effect that prosecutors have been able to avoid effective judicial control of charge bargaining by engaging in, what has been termed, precharging charge bargaining(Taha, 2001; Yellen, 1992). As Taha (2001, p. 252) has noted,

…(P)rosecutors and defense attorneys are better able to hide inappropriate charge bargains from judges, probation officers, and prosecutors' supervisors if these bargains are made before charges are filed. After charges are filed, it is more likely to appear that charges were reduced as part of a plea bargain, rather than for a legitimate reason such as insufficient evidence.

Undoubtedly, it is extraordinarily difficult to detect a charge bargain that has been reached before a charge has actually been laid against the defendant (Taha, 2001, p. 253) and the consequent lack of judicial scrutiny of the process of precharging charge bargaining opens the door to forms of plea bargaining that may be unduly coercive and potentially unlawful (Colquitt, 2001). However, Taha's empirical study confirmed that, after the introduction of the Sentencing Guidelines in the federal courts, prosecutors were, indeed, more likely to engage in the practice of precharging charge bargaining (Taha, 2001, p. 252). In support of this conclusion, Taha (2001, p. 266) points to two findings:

First, more defendants pled guilty to charges that are closer to the charges prosecutors filed. Second, prosecutors filed less serious charges against defendants.

Unfortunately, Taha's data did not include any cases decided after May 1990: hence, it is not entirely clear whether federal judges and probation officers have subsequently been able to develop strategies to combat the use of precharging charge bargaining by prosecutors as a device to circumvent and undermine the federal sentencing guidelines. One method of reducing the likelihood of such strategies achieving success would be to permit victims to comment on any proposed plea bargain at the formal inquiry required by Federal Rule 11. Such victim participation would render it more difficult for the parties to plea agreement to withhold vital information from the sentencing court.

It is necessary to sound a note of caution when discussing the administration of the United States Sentencing Guidelines: more specifically, it is important to recognize that the profile of offenders who are sentenced in the federal courts is greatly influenced by the particular nature of the offences that arise under federal – as opposed to state – jurisdiction. As Table 5 (U.S. Sentencing Commission, 2001) indicates, the majority of federal offenders are sentenced for drug and immigration–related offences – a profile that would be quite different from that which one would find in a "typical" state jurisdiction:

Table 5 - National Distribution of Sentenced Guideline Offenders by Select Primary Offense Category, 1999

Graph showing National Distribution of Sentenced Guideline Offenders by Select Primary Offense Category, 1999

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Source: U.S. Sentencing Commission, 1999 Datafile, OPAFY 99.