by David M. Reutter

Are federal courts participating in a legal fiction during sentencing proceedings to maintain a peculiar but potentially necessary mechanism to resolve criminal cases without a jury? That question and the effects thereof are the subject of Plea Agreements and Suspending Disbelief (“Essay”). In his Essay, Sam J. Merchant contributed new data on the subject and offered significant points for consideration.

The Essay appeared in the December 2024 Federal Sentencing Report. Merchant found limitations upon his research because of a lack of data on pleas approved under Federal Rules of Criminal Procedure Rule 11(c)(1)(C) (“C-Pleas”). The U.S. Sentencing Commission does not collect data on C-Pleas, which casts blinders upon those seeking a peek behind the closed rooms where criminal plea negotiations take place.

The rate of felonies and Class A misdemeanors resolved via guilty plea increased in recent years to 97.5% of federal cases. “On average, between 1989 and 2023, 95% of all sentences were imposed after a guilty plea,” Merchant found. “71% of all cases contained written plea agreements, 24% did not contain plea agreements, and the rest were resolved at trial.”

Those statistics make it “important to understand what is in those plea agreements,” asserted Merchant. “If binding or nonbinding agreements actually drove the associated sentences, any discussion of judicial discretion that ignores the central role of plea agreements is at best incomplete and at worst inaccurate or misleading.”

The discussion begins with understanding the three types of federal criminal plea agreements parties may reach and courts can approve. Rule 11(c)(1)(A) (“A-Plea”) allows parties to negotiate charge-bargain agreements, Rule 11(c)(1)(B) (“B-Plea”) allows parties to negotiate non-binding sentencing recommendations, and a C-Plea under Rule 11(c)(1)(C) allows parties to enter into binding sentencing agreements such that if the judge rejects the agreement, the defendant may withdraw a guilty plea.

At this point, the lack of data prevents researchers from discovering the type of plea agreement and knowing what is contained in the agreements. Research by Professors Jeffrey Bellin and Jenna I. Turner found that many judges dislike C-Pleas for being “unduly restrictive of their sentencing discretion,” and they are “more common in some districts.” A judge may make it known that C-Pleas will not be accepted so that “the parties would not even try it.” Sentencing in an Era of Plea Bargains, 102 N.C. L. Review 179 (2023).

C-Pleas affect judicial sentencing discretion. “In cases with binding plea agreements, judges defer to the parties on the sentence in some appreciable respect,” Merchant noted.

The majority of Sentencing Commission data is coded from the Statement of Reasons (“SOR”) form judges must complete. The SOR requires detailed reasons for a sentence only where the sentence is outside the Sentencing Guidelines. The Sentencing Commission is most concerned with when and why judges deviate from the Guidelines, which leaves researchers with no information when the sentence imposed is within the Guidelines range.

That narrow, but understandable, focus creates a blind spot for researchers. “[I]f we care about how judges are exercising their discretion, the real reasons for a sentence matter whether or not the sentence was within a guideline range,” wrote Merchant. “[T]he only current way to piece together whether a plea agreement potentially drove a sentence is to manually review plea agreements and other (often confidential) documents and then analyze the extent to which the ultimate sentence reflects the real offense and the parties’ agreement.”

The Sentencing Commission’s narrow focus on outside Guidelines sentences appears to conflict with congressional intent. 28 U.S.C. § 944(w) instructs judges to submit reasons and submit documentation for all sentences imposed. The failure to follow that legislative directive affects plea negotiations.

In one study that pre-dated United States v. Booker, 543 U.S. 220 (2005) (making Sentencing Guidelines advisory, not mandatory as they were prior to Booker), the dataset showed that parties circumvented the Guidelines in 20 to 30% of cases. Professor Thea Johnson in her 2019 study found that “fictional pleas” and “hidden departures” are basically common in federal courts.

Circumvention of “the real offense’s guideline range through plea bargaining or other means … would signal to the Commission or Congress” potential problems “with the applicable guidelines” or with “rogue parties or judges who ignore the applicable guidelines and apply ones they believe are more appropriate,” Merchant asserted. The lack of available data prevents such problems from becoming apparent.

The entire purpose of the Guidelines—assuring proportionate sentences based upon conduct and history—is undermined by the lack of scrutinization of “reasons for within-range sentences” and the concealing of “potential unwarranted disparity when different offenders who commit similar conduct receive different plea deals,” according to Merchant. The Essay highlights a disparate case and instances of “lenient” sentences. Sentencing Commission data showed that 80% of sentences in non-production child-pornography cases are reduced. The parties in 80% of those cases “tell judges that guidelines that should technically apply are inappropriate.”

Professor Bellin and Turner’s 2023 study found that A-Pleas and B-Pleas comprised around 80% of all pleas, and 20% were Binding C-Pleas. Alarmingly, judges accepted the plea agreement in every case within the dataset. Judges, the researchers found, deviated from party-recommended sentences in about one-third of the cases, going downward in all but one case.

Merchant introduced a dataset he collected from “236 cases brought under the Assimilated Crimes Act and sentenced under U.S.S.G. Section 2X5.1 during fiscal years 2016-2021.” The most common offenses in the dataset included child abuse, felony eluding, and intoxicated driving; 91% of those cases were resolved via plea agreement.

“Among these, there were 7% A-Pleas, 27% B-Pleas, 29% C-Pleas, and 28% of the time the parties made no sentencing recommendation in the documentation or agreed to anything within the court’s determination of the ultimate guideline range,” Merchant found. “In all but two cases, the judges adopted the parties’ recommendation.” That deviation rate was much lower than the 35% rate of deviation found by Bellin and Turner.

Combining the datasets from Merchant and Bellin and Turner’s study resulted in a finding that “72% of cases involved and A, B, or C-Plea agreement” and “around 25% of cases involved binding C-Pleas,” Merchant concluded. “Parties potentially drove some aspect of sentencing in over two-thirds of cases, and bound the court’s discretion with a C-Plea in around a quarter of cases.”

The collection of reasons for within-range sentences would help illuminate how often “parties agree on and courts apply the guideline that matches the real offense” and how frequently parties “enter into so-called ‘fictional pleas’ and ‘hidden departures,’” Merchant asserted. For instance, “In at least 26% of child-abuse cases brought in federal court, parties stipulated and judges applied what I concluded were incorrect guidelines relative to the actual offense.”

A fictional plea is when a defendant pleads guilty to a charge that does not correctly reflect the actual crime committed, e.g., pleading guilty to a lesser offense that doesn’t match the actual facts of the case. A fictional plea is agreed to by the parties in order to avoid the possible consequences of the original charge, e.g., longer prison sentence for the defendant and greater likelihood of not getting a conviction for the prosecutor. A hidden departure is a sentence that deviates from the Sentencing Guidelines without expressly stating so by the parties agreeing to manipulate the facts of the case to fit within the Guidelines range of the fictional plea. Importantly, the problem with fictional pleas and hidden departures is that they obscure the true nature of the crime and the reasons for the sentence, thereby impeding transparency.

Such plea agreements occur because of numerous fictions. The first involves prosecutors who start a criminal proceeding by stacking the deck by overcharging crimes, which provides bargaining leverage by inflating the minimum and maximum sentencing potentials. Congress, Merchant observed, engages in a related fiction by federalizing otherwise state crimes to soothe public outcries. Yet, Congress is aware that such federalization fails to have a deterrent effect. As a result, the congressional fiction frees politicians to expend virtually zero upfront cost, both politically and fiscally, by blowing the “tough on crime” horn to garner political clout.

Merchant considered a system where “statutory punishments and guideline ranges more accurately reflect the sentiment of the participants of the system and of the public.” Such a system would reduce a defendant’s incentive to plead guilty, resulting in more trials.” The implementation of such a system would result in court backlogs or require Congress to create more courts.

“[I]f Congress took seriously the task of accurately aligning severity and punishment, the ‘tough on crime’ golden goose would be spent,” Merchant said. Instead, the “framework of fictions … persists because they have proven their utility to enough of the right people, who therefore suspend belief” about the impact of plea agreements. Most interesting was Merchant’s detailing of the depth of the complicity that maintains the fictional framework.

“Congress continues to pass, increase, or keep on the books laws it knows will not be enforced, statutory maximums that will never be reached, and mandatory minimums it knows will be circumvented. Prosecutors threaten astronomical but ultimately fictional exposure,” explained Merchant. “Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t commit. Judges then accept those pleas. When observers analyze sentences and potential disparity, we pretend that sentences are based on judicial discretion, overstating the role of judges and understating the role of plea agreements.”

The initial meaningful step towards transparency, Merchant concluded, is to collect data via the SOR (1) to determine if a plea agreement motivated a within-range sentence and (2) to state the type of Rule 11(1)(c) plea agreement the court approved.

Booker, which SCOTUS issued in 2005, intended to return a meaningful amount of discretion to judges. Merchant encouraged stakeholders and researchers to ask: “Is that a fiction? Is it a necessary one? Do we even want to know?” 

Source: Merchant, Sam J., Plea Agreements and Suspending Disbelief, 37 Fed. Sent. Rep.___ (December 2024)

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