B. The Impact of the Sentencing Guidelines

On November 1, 1987, the plea bargaining process was radically altered by implementation of the Federal Sentencing Guidelines. It is impossible to discuss plea bargaining without also discussing the impact of the Sentencing Guideline Act upon the settlement possibilities in a federal criminal case. The provisions of the Federal Sentencing Guideline Act (hereinafter “SGA”) are codified at 18 U.S.C. §§ 3551 – 3556. These provisions applied to all federal offenses occurring on or after November 1, 1987.  However, in the 2005 case of United States v. Booker, the Supreme Court found the SGA to be only advisory and not mandatory.  Although the SGA is no longer mandatory, its provisions are still considered in plea bargaining and are often used as a benchmark in these discussions.


Before November 1, 1987, there existed almost unfettered judicial and Parole Commission discretion in the federal sentencing scheme. Before November 1, 1987, if an individual entered a plea of guilty to a federal criminal charge, he/she would typically face a penalty of a certain period of specified years in jail and/or a fine. While the government and the defendant many times might negotiate on the specific sentence, if the parties agreed that the sentence to be imposed would be left to the discretion of the court, the court was then permitted to impose whatever sentence it felt in its discretion was the most just and equitable under the circumstances.

Unfortunately, under this system, there was wide disparity in sentencing throughout this country; it was not uncommon for similar offenses to be treated altogether differently in different parts of the country, depending upon the location of the offense, and the individual personality traits of the sentencing judge. Two cases almost exactly alike, involving an almost identical crime, might result in two entirely different sentences. Indeed, much research was done prior to implementation of the SGA which established that federal judges throughout the country would almost always handle cases quite differently. For example, hypothetical factual situations were presented to federal judges for sentencing purposes and wide disparities were clearly identified when these judges would impose far different sentences under the exact same hypothetical facts. Thus, in order to eliminate the perceived disparity in sentencing, and to achieve uniformity throughout the country, Congress enacted the SGA.

Next Section: 1. Enactment of the SGA

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