“Booker at 20″: reflections on the impact and import of plea agreements
As set out in this prior post, I have started a series of posts here on the topic of “Booker at 20,” partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic. A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, and today’s entry (on Booker’s actual 20th anniversary) comes from Sam Merchant:
For understandable reasons, Booker was expected to expand judicial discretion at sentencing. But around 98% of federal criminal cases are resolved through guilty pleas, and around 71% of those involve written plea agreements. These agreements often dictate sentencing outcomes, raising questions about the true extent of judicial discretion.
Despite their ubiquity, most plea agreements remain opaque to outside observers. The U.S. Sentencing Commission collects data on the reasons that judges deviate from guideline ranges but it does not systematically collect that information for sentences within guideline ranges (where plea agreements frequently play a decisive role). As long as the parties can confabulate a sentence that fits within a guideline range, the true reasons for the sentence may be forever obscured.
This is a potential problem, particularly in cases I’ve studied involving “fictional pleas” or “hidden departures,” where the plea and guideline range don’t match the real offense conduct. I and others have identified this in around a third of federal cases (conservatively). While I’m not necessarily against the practice, it does undermine the stated goals of uniformity and transparency. (Of course, these might not actually be desirable goals, but they are included in Congress’s stated goals.) And when parties withhold information from judges, it directly challenges the traditional story about the extent of post-Booker judicial discretion. The system we’ve created gives sentences the appearance of being guided by Article I and Article III, when in reality, the influence of Article II is underappreciated. Post-Booker, there is a sense that “sentencing is for judges, so if a judge imposed the sentence, I’m sure everything is fine.”
There is probably little interest in changing the framework of fictions we’ve created. Members of Congress can continue appearing “tough on crime,” knowing that their laws will be (inconsistently) circumvented. Prosecutors can threaten astronomical but ultimately fictional criminal exposure to induce pleas. Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t actually commit. Busy judges accept those pleas. The significant investment required to reform the system and hold more trials is almost certainly politically untenable. So the system prioritizes efficiency over truth and fairness. The system churns on — efficient, opaque, and quietly complicit in its own contradictions, perpetuating a framework of fictions that seems to primarily serve the designers and operators.
Brown paper bags come to mind. In the 1950s and 1960s, most American city councils passed laws that prohibited the consumption of alcohol in public places. Police lacked the capacity to prosecute every offender, but ignoring obvious violations would foster disrespect for the law. In an act of “ghetto diplomacy,” consumers began putting paper bags over their beverages. Police then had the discretion to look the other way and focus resources on more serious crimes. Passersby had plausible deniability — maybe there isn’t really an alcoholic beverage inside that bag? City leaders could take the win for cleaning up the streets, at least well enough for government work.
Just as the participants agreed and society accepted the bag as a willful delusion, the criminal system gives us plausible deniability about how “justice” is administered. The participants do what they can to keep cases moving, and enough members of the public don’t want to know or simply don’t care what’s inside. Perhaps it’s not justice the public seeks, but the illusion of it, wrapped in systems that give us permission to look the other way.
Prior post in this series: