Michael D. Cicchini has posted Deal Jumpers (2021 U. Illinois L. Rev. __ (2021, Forthcoming)) on SSRN. Here is the abstract:
Fundamental fairness dictates that when a criminal defendant enters a plea in exchange for the prosecutor’s sentence concession, the defendant should actually receive the sentence for which he or she bargained. Surprisingly, however, many states permit the judicial practice of deal jumping: the judge can accept the defendant’s plea, disregard the sentence concession that induced the plea in the first place, and then sandbag the defendant with any punishment the judge wishes to impose. Worse yet, the hapless defendant is left without recourse, unable to withdraw his or her plea.
Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system—a system that relies on plea bargains for more than 95 percent of its convictions. To ensure fairness, transparency, and integrity in plea bargaining, state legislatures should eliminate deal jumping and require judges to approve or reject sentence concessions at the same time they approve or reject charge concessions: before accepting the defendant’s plea. Alternatively, if a judge accepts the defendant’s plea but then decides to exceed the agreed-upon sentence, the defendant should be allowed to withdraw his or her plea and proceed to trial.
Legal reform to eliminate deal jumping is simple to implement and has garnered broad-based support; nonetheless, state legislatures often resist change, clinging blindly to the status quo. Therefore, this Article also provides defense lawyers with a practical plea-bargaining strategy to protect their clients. Defense counsel should consider invoking little-known but effective legal rules—rules which exist in many states—to constrain judicial abuse, provide greater certainty at sentencing, and even ensure the defendant receives the actual benefit for which he or she bargained.