Plea Bargains and Sentencing

More than 90 percent of federal defendants plead guilty. Some do so during the pretrial phase as part of a plea bargain, in exchange for the prosecutors’ dropping some charges or recommending a more lenient sentence.

Two documents are filed with the court at the plea hearing: the plea agreement, which outlines what charges are being pleaded to and which are being dropped; and a statement of facts describing what the defendant admits to doing. Both generally are available only after the hearing has ended.

During the hearing, the judge will conduct what is known as the plea colloquy, in which defendants are informed of the rights they are giving up and the crimes they are admitting. At some point, the judge will ask the defendants to, in their words, describe what they did.

Sentencing is generally scheduled for a month or more after the plea hearing, to allow time for the staff of the court’s Probation Office to prepare a presentence investigation report. The probation officer will speak to the defendant, family members, friends, and others as part of the investigation. The report is always filed with the judge, prosecutor, and defense counsel under seal. Since 1987, sentencing in federal court has been governed by the U.S. Sentencing Guidelines. They are set by the U.S. Sentencing Commission, a judicial branch agency created by Congress to make sentencing more determinate and lessen sentencing disparities.

The presentence report makes a recommendation as to how the guidelines rate the seriousness of the offense and the defendant’s criminal history. Prosecutors and defense counsel will have made a similar estimate when they agreed to the plea bargain. The judge is bound by the Guidelines, but may depart upward or downward, subject to review on appeal. The judge is not required to follow the recommendations of the probation office or the parties. During the sentencing hearing, defendants are given a chance to tell the court anything they believe the judge should consider before imposing sentence.


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