As the Oklahoma legislature considers revising its criminal code to provide for classes of felonies and uniform sentence ranges, the question of how this impacts judging has come up in a recent Senate committee meeting. It’s a good question, as any change to criminal law should receive input from all stakeholders. HB 1792 is a bill that remains a work in progress, but the idea behind it is to classify felonies in the Oklahoma criminal code so like crimes are treated alike. Oklahoma law does not currently classify felonies as “Class A” or “Class B,” but is rather a patchwork of hundreds of crimes—each with their own punishment range. So how would HB 1792 affect judges if it were implemented? The answer, I believe, is not very much.

Thanks to crime dramas, the criminal jury trial is probably the most well-known aspect of the criminal justice system. Jury trials remain the constitutionally prescribed way of deciding criminal cases in this country. Oklahoma remains one of a handful of states where juries not only decide the facts and determine guilt, but also recommend sentences. While I’ve not seen any empirical studies on the subject, the overwhelming sentiment of practitioners is that judges rarely deviate from the sentence recommended by the jury. Thus, at least when it comes to jury trials, judges have traditionally restrained their own authority to deviate from sentences recommended by juries.

I have heard at least one prosecutor argue, however, that jury sentencing isn’t a problem because the overwhelming majority of cases are resolved without the constitutionally prescribed jury trial. As I’ve pointed out before, (often coercive) plea bargaining remains the favored mechanism for resolving criminal cases by prosecutors. So the next question is what kind of discretion do judges exercise when a defendant wants to plead guilty—usually in exchange for a lighter sentence? The answer is, again, very little.

The most common guilty pleas involve an agreement between the prosecutor and the defendant whereby the defendant agrees to admit guilt in exchange for a more lenient sentence. This could include a shorter prison term, probation, or a number of other incentives. In this case, the judge can either accept or reject the plea. Should the judge reject the plea, it does not mean the judge can impose his own sentence. Instead, the judge sends the case back to the negotiation stage. But there is little the judge can do otherwise.

I have seen a case where twice the judge rejected a plea agreement as too harsh, only to have the prosecutor unwilling to come off the punishment the prosecutor thought was appropriate. In the end, the judge had to eventually go along. As Oklahoma City attorney Rex Travis wrote a few years ago, “judges do not make plea agreements. The plea agreements are made after negotiation between the prosecutor and the defense attorney and presented to the judge with only the choice of accepting the deal and imposing the agreed sentence or rejecting the deal, in which event the case must be tried or dismissed.” In other words, the majority of plea deals involve little to no discretion from judges.

There are, however, guilty pleas referred to as “blind pleas,” where the defendant throws himself on the mercy of the court and allows the judge to impose the sentence. In these cases, there is no agreement between the prosecutor and the defendant. Whereas the negotiated plea provides certainty as to punishment, the blind plea leaves the defendant’s fate in the hands of the judge. And knowing the tendency of judges is difficult because these pleas are not particularly common.

If sentencing ranges—especially enhancements—are reduced for some crimes, then it is possible blind pleas will increase for those crimes. In other words, if a life sentence is off the table for second-degree burglary, then more people may be willing to throw themselves on the mercy of the court, giving judges more discretion and influence over the process. In many cases, this would be a welcome shift of power from prosecutors to judges.

Unlike Oklahoma courts, federal courts do give judges a great deal of flexibility in sentencing. Though somewhat restricted by federal sentencing guidelines, federal judges are free to depart or vary from sentencing guidelines which the United States Supreme Court has decided are advisory. It remains to be seen whether Oklahoma trial judges even want more discretion. Unlike federal judges, who enjoy life tenure, Oklahoma trial judges routinely stand for re-election. It’s reasonable to think some trial judges may not appreciate the added scrutiny that would come with a larger role in criminal sentencing.

There are pros and cons to federal and state systems. When considering changes to the criminal code, policymakers should understand the back seat Oklahoma judges occupy in sentencing. But current legislation may make it possible to add more judicial discretion and shift power from prosecutors to judges. If the idea is to empower judges, HB 1792 could do just that.