Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining

Abstract

This article examines what can be done to further accuracy of adjudication and equality among defendants, especially at the plea and sentencing stages, in a federal criminal justice system that has moved from an adjudicative to a de facto administrative regime. It highlights how the coercive power of plea bargaining, unequal treatment of criminal defendants based upon wealth, race, and geography, ubiquity of appeal waivers, and the dearth of constitutional or other regulation in this area have contributed to these inequalities. Finally, it suggests some improvements in plea, discovery, and sentencing procedures that may be possible in a post-Booker world.

Keywords: criminal sentencing, judicial discretion, sentencing, plea brgaining, Booker

JEL Classification: K14