Daniel S. McConkie Jr. (Brigham Young University – J. Reuben Clark Law School) has posted Judges as Framers of Plea Bargaining on SSRN.
Here is the abstract:
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.