Allowing Sentence Bargains to Fall Outside of the Guidelines without Valid Departures: It is Time for the Commission to Act

This Note studies the effects that the 1984 Sentencing Reform Act and the Federal Sentencing Guidelines have had on the practice of plea bargaining. In particular, the Note examines how the practice of sentence bargaining has been affected. The Guidelines state that Rule 11(e) of the Federal Rules of Criminal Procedure continues to govern the acceptance or rejection of plea agreements. On its face, Rule 11 (e) appears to give federal courts the absolute power to accept or reject plea bargain agreements that provide for specific prison sentences. However, the Guidelines also set forth general policy statements concerning the acceptance of plea agreements. These policy statements explicitly prohibit courts from accepting plea bargains that deviate from the sentences provided for in the Guidelines. As a result of this contradiction, an inter-circuit split has developed with regard to the acceptance of specific, binding sentence agreements. Some circuits accept sentence bargains that fall outside of the Guideline ranges and, in doing so, engage in a practice that is explicitly prohibited by the policy statements. Other circuits, by deferring to the policy statements, refuse to accept specific sentence agreements unless they comport with the Guidelines. While there is no argument about the existing conflict between Rule 11(e) and the policy statements, there remains doubt as to which should be given controlling weight. The Note provides a general history of the Guidelines and describes the practice of plea bargaining under the Guidelines. It further analyzes the conflict between Rule 11(e) and the policy statements relating to sentence bargaining. Finally, the Note argues that it is time for the Commission, and Congress, to pass a Guideline-as opposed to a policy statement-that prohibits prosecutors and defense counsel from entering into specific sentence agreements that circumvent the Guidelines