Sentencing and plea bargaining : guilty pleas versus trial verdicts

In the daily work of the criminal justice process, the relationship between plea decision-making and sentencing is one of the most important. Meanwhile, in the academic and policy literatures it is one of the most controversial. This essay examines the moral arguments for and against the practice of altering a sentence as a consequence of a plea of “not guilty” or “guilty”. It also appraises the state of international empirical knowledge about the practice and raises questions for future research. It is widely believed that a defendant who pleads guilty is likely to receive a reduced sentence if s/he pleads ‘guilty’ than if s/he is found guilty, as a result of a trial, of exactly the same charges. Various terms are used to describe this practice (e.g. “Sentence Reduction”, “Guilty Plea Discount”, “Sentence Deduction”, “allowance in respect of a guilty plea”, “Trial Penalty”, et cetera.). However, as discussed below, these terms are value laden and imply different normative positions. Thus, in the interests of neutrality, this essay will generally use the term “Plea-Dependent Sentence Differential” (or “Sentence Differential” for short). The foundation for the Sentence Differential varies depending on the jurisdiction. In some jurisdictions statue or case law may permit, or even require, a Sentence Differential. In others the basis of the Sentence Differential is found in guideline schemes. In certain jurisdictions the Sentence Differential may have little formal basis and is routed in the informal practices of sentencers. However, regardless of its basis, in most criminal justice systems there is a widely held perception that there is a Sentence Differential. This essay will provide an overview of the main issues and debates resulting from the Sentence Differential. In doing so, it also raises some provocative questions and suggestions for future research, not least the pressing need for a fuller appreciation of defendants’ perspectives and decision-making