Plea Bargaining in Federal Court: Predicting and Minimizing the Actual Time to Be Served
| Jurisdiction | United States,Federal |
| Citation | Vol. 15 No. 8 Pg. 1395 |
| Pages | 1395 |
| Publication year | 1986 |
1986, August, Pg. 1395. Plea Bargaining in Federal Court: Predicting and Minimizing the Actual Time to be Served
Perhaps the least understood yet most important aspect of plea bargaining in the federal courts is how to predict and limit the actual time a defendant will serve on any sentence ultimately imposed by the district court. Since plea bargaining accounts for the disposition of approximately 95 percent of all federal criminal offenses, an attorney practicing in federal court must be familiar with the manner and means by which a defendant's actual term of incarceration is computed by the Parole Commission. By understanding that process, the defense attorney can discharge his or her duty to advise the client of the long-term effects of the plea bargain and assist in minimizing the actual time to be served.
While the sentencing judge establishes the maximum term to be served by a federal prisoner, the actual release of a prisoner short of that statutory term is left to the Parole Commission. Generally, a federal prisoner serving a sentence of five years or longer will serve a maximum term of incarceration of no more than two-thirds of the sentence.(fn1) With good time and industrial good time computations, a prisoner serving a sentence of less than five years also will likely be released after serving no more than approximately two-thirds of the sentence.(fn2)
The minimum term of actual incarceration is governed in part by the nature of the sentence imposed by the district court. The sentencing court has two alternatives in imposing the sentence of imprisonment. First, the judge may specify a minimum term, which must be less than one-third of the maximum allowable sentence, after which the defendant shall be eligible for parole.(fn3) Second, the judge simply specifies a maximum term of imprisonment, allowing the Parole Commission to determine the parole date, which is normally after at least one-third of the sentence has been served.(fn4) Thus, if sentence is imposed under the first alternative, the defendant can be released after serving the minimum term set by the district court, which will be less than one-third, of the sentence. If sentence is imposed under the second alternative, the defendant will serve at least one-third, but not more than two-thirds, of the sentence imposed.
Advising a defendant that the actual time to be served will probably be more than one-third but less than two-thirds of any sentence ultimately imposed is generally accurate and appropriate advice. However, that information may not be sufficient to allow the client meaningfully to evaluate a proposed plea bargain. With sentences becoming increasingly severe---sentences of between ten and twenty years are more commonplace---evaluating the projected amount of time to be served is crucial to the overall evaluation of the desirability of a proposed plea bargain.
As an example, a defendant facing conviction on numerous counts carrying total cumulative punishment of more than thirty years...
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