Recent Supreme Judicial Court Decision Allows Judges to Impose Lesser Sentences in Plea Bargains

The reaction of District Attorneys to the Massachusetts Supreme Judicial Court’s (SJC) decision to allow judges to impose sentences below the specific terms agreed to by the parties in an agreed plea deal was typically overblown, but not unexpected. According to one DA, the SJC’s decisions will "dramatically change the criminal justice landscape" by allowing judges to ignore a jointly agreed upon sentence recommendation and instead grant a lesser sentence if he or she believes the presented sentence would not serve the interests of justice.

Will this in fact be such a dramatic change? As a criminal defense attorney who has participated in thousands of plea negotiations as both a former state and federal prosecutor, I believe the only true impact of this well-reasoned decision will be to ratify and reassert the judge’s long-recognized role as the final and ultimate arbitrator of what is a fair, just and appropriate sentence in any criminal case.

There will also be a secondary impact of encouraging far more pre-plea lobby conferences in which the judge will be consulted before any deal is struck or any agreement reached. To be frank, experienced attorneys already do this in most plea negotiations, and plea negotiations with lobby conferences are already considered an efficient and practical way of resolving cases short of trial.

In criticizing the SJC’s decision, the DAs are really complaining about losing a function that was never theirs to begin with: the ability to dictate and leverage sentences that might not necessarily be in the defendant’s best interest to accept. Until these recent decisions in Commonwealth v. Waryasz and Commonwealth v. Harvey, a defendant who pled guilty could only undo an agreed plea deal if the judge imposed a sentence above and beyond that jointly recommended by the parties. In other words, even if the agreed sentence was unfair, excessive or inconsistent from sentences imposed on other defendants in similar circumstances, the defendant was stuck with it once he pled guilty. Understanding this, prosecutors have been known to take advantage of their right to seek a complaint or indictment alleging the most serious charge possible when making charging decisions in order to try to leverage or squeeze "agreed" pleas to lesser charges which may not be in the defendant’s best interest to take–something that until now, judges have been powerless to do anything about.

In reality, agreed plea deals (which are different from the more common situation of non-agree plea negotiations, where the judge’s role in making the ultimate sentencing decision has never been questioned) often do reflect the client’s best interests given the reality of his or her circumstance in view of alternative consequences such as Superior Court prosecution and/or mandatory minimum state prison sentences. Still, the fact is that determining the correct and appropriate sentence in any case is, and always has been, the sole provenance of the judge.

Although I predict Waryasz and Harvey will have little more practical effect on how things are done procedurally in our courts on a day to day basis, I believe it sends an important message to all of us about our unique system of checks and balances and the fact that judges should not only always stand impartial, but also sometimes need to stand-in as the very last line of defense between the citizenry and a sometimes over-zealous, arbitrary and capricious, and always powerful, government. The question I have is, "What’s wrong with that?"

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828