Judges as Framers of Plea Bargaining


  • Daniel S. McConkie
Publish Date:
April, 2015
Publication Title:
Stanford Law & Policy Review
Stanford University
Place of Publication:
Stanford, California
Journal Article Volume 26 Issue 1
  • Daniel S. McConkie, Judges as Framers of Plea Bargaining, vol 26 Stanford Law & Policy Review 61 (2015).
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The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight. This presents significant issues concerning transparency, fairness, and effective sentencing. Federal prosecutors strongly influence sentences by the charges they select. The parties bargain informally outside of court and strike a deal, but defendants often plead guilty without a realistic understanding of their likely sentencing exposure. Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence. The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case and partly because the judge lacks the resources for courtroom-clogging jury trials. What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.

This Article explores a proposed procedure that would do just that. Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings. As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties. The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial. This increased judicial participation through a regularized advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions. Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty. In short, although plea bargaining is here to stay, criminal justice could be greatly improved by bringing more of the plea bargaining process back into the courtroom, where the judge could help frame the key issues for the parties.