Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?

The 1987 sentencing reforms were expected to change profoundly the environment in which plea bargaining takes place by increasing the average length of sentences for serious crimes and by eliminating the variation in sentences imposed by different judges. Using cases initiated and resolved between 1981 and 1995 in two federal district courts of New York, we examine whether the variation in sentences attributable to individual judges has been eliminated, and we investigate whether the plea‐bargaining behavior of defendants has changed. Surprisingly, we find that the amount of variation attributable to the judge for trial sentences increases post‐reforms. Consistent with this result, defendants continue to bargain in the shadow of the judge post‐reforms, particularly for crimes involving minimum sentences. Further, sentences may not have increased as much as expected: although the average prison term for trial sentences increases post‐reforms, there is no systematic increase in the average length of the pleas.