Theory: The problem with federal plea agreements is that they are entirely unsupervised by courts in any meaningful way, but also not binding on the court itself in most cases, other than to the extent that the plea agreement includes a dismissal of other charged conduct. This unchecked plea power is the result of the enormous prosecutorial power that AUSA’s have, chiefly flowing from overbroad federal criminal statutes, conspiracy law, and also also unconstrained penalties (0 to life, 5 to 40, etc.). Courts have been reluctant to intervene to police plea agreements because of the notion that these are “bargained-for” exchanges. But there’s very little “bargained-for” in these exchanges. One side has a howitzer. In any other context, these would be unconscionable contracts. But the ultimate problem, especially in the EDNC where judges refuse to be bound by these agreements, is that you don’t even truly get the benefit of the supposed bargain, and the Judge has the chutzpah to tell you so when you come for your Rule 11 hearing. The judge will tell you, basically, that any estimate by your defense lawyer is not binding.

This system survives because there is a powerful lobby – the DOJ – in favor of these laws and sentencing schemes, and an incredibly weak and disorganized “defense bar” that couldn’t ever possibly mount a response. Congressmen, when they are not former prosecutors, are ignorant of the structures and incentives in the system.

What is even worse is that, in addition to really getting nothing for your signature on a plea agreement, except possibly 3 points off for acceptance of responsibility, you waive your appellate rights in almost all important respects, including the calculation and establishment of the sentencing guidelines.

Let’s just assume that this is a just system and that a 20 year sentence for crack cocaine sales is moral. EVEN on its own terms, it is inefficient, resulting in endless post-conviction litigation even on plea deals that are supposedly “bargained-for.” Why is this? Only a fool would design the American federal justice system.

Damon Chetson - 991 posts

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.

Federal Criminal Law