INTRODUCTION I. GETTING AROUND THE GUIDELINES II. THE EXTENT OF EVASION III. THE COSTS OF FACILITATING EVASION BY AGREEMENT IV. SOME OPTIONS FOR IMPROVING JUDICIAL OVERSIGHT OF NEGOTIATED SENTENCES CONCLUSION INTRODUCTION
For over two hundred years our nation's legislatures have, for the most part, rejected mandatory penalties in favor of judicial discretion to sentence within a designated range. This policy has endured, despite shifts in punishment philosophy, for two reasons. First, any offense definition is necessarily inexact, sweeping in less culpable offenders who just barely violate its terms along with hardened criminals who cause far more harm than its drafters envisioned. A sentencing range allows the judge to adjust the sentence to address these individual cases. Second, as negotiation increasingly dominates criminal justice, judicial discretion in sentencing has helped to iron out the very different punishments that like offenders might have otherwise received as a result of bargains--bargains sometimes based on considerations that the legislature has not endorsed as valid reasons to reduce or increase punishment. (1) The judge's final authority to select an appropriate sentence from within a range of punishment is thus an essential part of any sentencing policy that simultaneously values both efficiency through negotiated dispositions and consistent application of systemwide sentencing norms. (2)
In the Sentencing Reform Act of 1984, (3) Congress recognized that bargaining threatened to undermine its new sentencing regulations. It also recognized that judicial oversight was the most potent remedy for this threat. Continuing the pre-Guidelines practice of real-offense sentencing, the new Federal Sentencing Guidelines preserved for judges the authority to set final sentences using offense and offender facts not established as part of the offense of conviction. (4) But the ability of real-offense sentencing to counter the sentencing effects of negotiation has proved far from perfect. Both in bargaining over statutory ranges and in bargaining over sentences within statutory ranges, parties have easily escaped from the constraints of the Guidelines.
Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). (5) By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide by them. (6)
Other authors in this Issue address whether lawmakers should modify some of these statutory mechanisms that expand the government's unilateral power to select very different punishment ranges for not-so-different cases. (7) This Article will focus instead on the parties' ability to circumvent consistency by bargaining around the rules that structure sentences within statutory ranges. Without careful control by judges, sentencing bargaining carries risks for structured-sentencing systems that may outweigh gains in efficiency. After a discussion of weaknesses in the ability of judges to oversee the factual accuracy of sentencing decisions, this Article advances several options that would strengthen that supervisory role, promoting greater accuracy, transparency, and consistency in federal sentencing.
GETTING AROUND THE GUIDELINES
Parties have at least three mechanisms for evading rules intended to structure the judge's sentencing decision within a given statutory range, regardless of whether those rules are the complex Guidelines presently in place, or are more simplified rules, as several commentators have proposed. First, because judicial oversight of negotiated sentences depends upon access to independent offense and offender information in the presentence report, parties can handicap the judge's ability to detect how their recommended disposition deviates from the Guidelines by managing the information that is revealed during the presentence investigation. Second, parties can minimize the impact of the presentence report by stipulating in their plea agreement to facts or to applications of factors, hoping the judge will accept their stipulations rather than take the time to adjudicate the accuracy of those facts or issues. Third, parties have used plea agreements with binding sentence agreements under Federal Rule of Criminal Procedure 11(c)(1)(C) to bypass judicial oversight of sentencing entirely. (8)
Congress, the Department of Justice, and the Sentencing Commission recognize that these practices undercut sentencing consistency. The Attorney General has advised prosecutors to provide probation officers and judges with all "readily provable" sentencing facts. (9) The presentence report form itself was modified to include a section, titled "Impact of the Plea Agreement," to report the plea's effect on the sentence. (10) Congress directed the Commission to issue guidance for judicial policing of plea agreements through Rule 11, hoping that "judicial review of plea bargaining under such policy statements should alleviate any potential problem in this area." (11) In turn, the Commission promulgated a policy statement that courts "shall" defer deciding whether to approve charge bargains or plea agreements with binding sentence stipulations "until there has been an opportunity to consider the [presentence] report." (12)
These rules have yet to produce a unified approach to judicial oversight of the negotiation of sentences by the parties. Some prosecutors, judges, attorneys, and probation officers believe justice is served whenever parties choose in their plea agreements sentences that make sense to them, even if they do not make sense under the Guidelines, while others disagree. The remainder of this Article addresses this debate and proposes some modest modifications of present rules.
THE EXTENT OF EVASION
There is little research available examining how often information known to the prosecution or the defense is not included in the presentence report or investigation or how often parties submit plea agreements that understate offense or offender information, or how often plea agreements stipulate to sentences or sentence calculations outside the Guidelines. (13) It is probably safe to say that stipulations, even when they conflict with factual allegations in the presentence report, usually reflect appropriate compromise and professional judgment, not outright manipulation. For example, probation officers (who are not lawyers) may not fully understand why the evidence supporting particular sentencing facts is unreliable or why a judge might accept an argument for applying a Guidelines factor differently. (14)
Still, reports of fact and factor management by parties are too frequent to be ignored. In one survey, more than twenty-five percent of responding judges reported that stipulations in plea agreements understated the offense conduct somewhat frequently or very frequently, and another twelve percent said it was understated about half the time. (15) Another survey revealed that probation officers in forty-three percent of the districts reported that more often than not, the calculations in plea agreements were not supported by accurate and complete offense facts. (16) Other studies, too, have identified fact bargaining. (17) One of the few points on which all nine Justices in Booker could agree was the persistence of fact bargaining under the Guidelines. (18)
Evasion may persist in part because existing controls are not effective. Rules of professional responsibility prohibit misrepresentations by lawyers, but they do not bar prosecutors from skipping over information when discussing a case with the probation officer or from closing investigations as soon as a deal is imminent. Nor do they limit defense attorneys from counseling their clients not to discuss offense conduct or criminal history with the probation officer, a common (and understandable) practice in some districts to avoid disclosure of facts that may lead to an aggravated sentence. (19) Not every prosecutor complies in every case with the Attorney General's warning to disclose to probation officers and base plea agreements upon all readily provable facts. And the primary control--the judge's ability to sort accurate allegations from questionable ones--is constrained by lack of information and resource pressures that make testing the reliability of stipulations difficult and costly.
Judges rely on presentence reports for information about the case, but there are presently few mechanisms in place to ensure that probation officers conduct thorough investigations. Rather, funding for investigations has not kept pace with caseloads, and some probation officers reportedly have had to cut corners. Lacking the time it would take to contact referring state agents, witnesses, and other sources who could give a more complete picture of the offense, some officers make do with the prosecution's description. (20) Investigations of the defendant and his circumstances are also abbreviated compared to those of the past. Some officers reportedly avoid investigating facts once they learn there is a stipulation, particularly if there is an appeal waiver. (21)
Delayed consideration of presentence reports can cripple oversight as well. Judges often accept plea agreements including stipulations as to sentencing facts and factors before reviewing the presentence report. (22) If later a conflict arises between the stipulated recommendations and the presentence report, theoretically the...