Weighing the Value of the Bargain: Prosecutorial Discretion After Sentencing Guidelines

There is little empirical research to indicate whether the introduction of sentencing guidelines displaces discretion from judges to prosecutors. In the handful of studies that examine the hydraulic displacement of discretion, discretion is usually measured by the rate of charge bargaining. The current study uses an alternative methodology—calculating the value of the bargain—to examine the effect of sentencing guidelines on prosecutorial discretion in the District of Columbia Superior Court. It measures the impact of charge bargaining on sentence length in a sample of 266 pre-guidelines sentences and 263 post-guidelines sentences, and finds that the rate of charge bargaining did not change after the introduction of guidelines, but that the impact of bargaining on sentence length increased slightly. Although the amount of displacement of discretion in the D.C. Guidelines was modest, the study demonstrates that alternative measures (value of the bargain) might reveal displacement of discretion when traditional measures (rate of the bargain) do not.

Mandatory Minimum Firearm Penalties: A Source of Sentencing Disparity?

This paper capitalizes on information about firearm use available in a standard sentencing guideline worksheet to study who is ultimately convicted with a mandatory minimum firearm penalty in the state of Maryland. Findings show that the mandatory firearm penalty is applied in only 37% of all eligible cases, and it is associated with an additional 41 months of prison time. The penalty is not applied randomly, but appears to be part of an organized effort to punish more serious offenders convicted of more serious offenses. Race and gender are also significant predictors of being convicted under this penalty. It is possible that race and gender are only proxies for other unobserved characteristics, but this finding serves as an upper bound on the size of the gender and race effect in prosecutorial discretion, and demonstrates the potential for disparity in the charge bargaining stage of the sentencing process.

Charge Bargaining and Sentence Discount: The Victim's Perspective

This paper draws attention to the interests of the victim in the criminal justice system in relation to the use of charge bargaining and the sentence discount in UK law. The paper argues that debate in this area tends to assume that these practices, particularly use of the graded sentence discount, are in harmony with the needs of crime control and with the interests of victims, but that they may infringe due process rights. Debate tends to concentrate on the due process implications of such practices, while the ready association of victims' interests with those of crime control tends to preclude consideration of a distinctive victim's perspective. This paper therefore seeks to identify the impact of charge bargaining and the sentence discount on victims in order to identify a particular victim's perspective. It goes on to evaluate measures which would afford it expression including the introduction of victim consultation and participation in charge bargains and discount decisions as proposed under the 1996 Victim's Charter. It will be argued, however, that while this possibility has value, victims' interests might be more clearly served by limiting or abandoning the use of these practices.