With the two new Supreme Court decisions handed down at the beginning of last week regarding judicial discretion in federal sentencing and the federal sentencing commission allowing retroactivity on some of the sentences regarding crack cocaine, it appears that the pendulum may start swinging back in favor of allowing more judicial control over sentencing.

Until recently, judges had very little discretion to vary from the federal sentencing guidelines. Circuit courts had repeatedly overturned sentences in which judges, examining mitigating circumstances and the particular defendant, had determined that the sentence, under the guidelines, was too long. With the sentencing guidelines as harsh and immovable as they had become without judicial discretion, plea bargaining in that shadow becomes distinctly more powerful for the prosecutor. The primary decision is the actual criminal charge rather than the sentence. This situation had given discretion to the prosecutor to look at the circumstances and the defendant and make a decision about charging but had removed much of the discretion of the judge.

How do these decisions potentially affect plea-bargaining? Well, if the shadow of the law looks bleak, the defendant is even more likely to accept a deal. (I have posted about this previously as one of the potential reasons that defense attorneys are perceived as so cooperative.)  If the shadow of the law looks merciful or has some discretion, as the judge may now possess, defendants might be more willing to go to trial and to allow the judge to sentence them.  In the upcoming Marquette Law Review symposium, we discuss the intersection of dispute resolution with criminal law.  Perhaps the real impact of the Supreme Court decisions last week will not be in court cases but rather in the shadows–the plea bargaining that occurs now that the discretion has shifted back from the prosecutor to the judge.