Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment

Abstract

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). 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. 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. 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.