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Abstract:
Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes.

Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining.

In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains.

Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

Plea bargain, guilty plea, shadow of trial, Easterbrook, Scott, Stuntz, Alschuler, Schulhofer, negotiation, settlement, dispute resolution, psychology, behavioral law and economics, Kahneman, Tversky

Abstract:
In a forthcoming article in the Cornell Law Review, I advocate abolishing Alford and nolo contendere pleas. These "guilty-but-not-guilty" pleas allow defendants to plead guilty without admitting guilt. Offenders who avoid admitting guilt remain in denial and are more likely to recidivate, and the justice system sends equivocal moral messages to victims and the public. In a response in the same issue, Professor Albert Alschuler supports these pleas as a lesser evil and criticizes my proposal as window-dressing for an irredeemably flawed plea bargaining system.

This Reply responds to Alschuler's criticisms. Part I points out that even in our flawed system, pleas carry meaning and send messages. The equivocal messages of Alford and nolo contendere pleas harm defendants, victims, and the public. Part II critiques Alschuler's exaggerated comparison of plea bargaining to coercion at gunpoint. Plea bargaining rests on lawful sentence differentials. Offenders who are in denial merit heavier sentences to deter, incapacitate likely recidivists, inflict retribution, teach lessons, and vindicate victims. Part III stresses the need to impede guilty pleas by innocent defendants and send a consistent message of concern for the innocent. Part IV notes that while some proposals for rehabilitation have involved unconscionable methods, my proposal uses the traditional jury trial as a morality play to teach lessons and send messages. It also notes that while defense counsel must represent their clients' interests, counsel can also serve a therapeutic role and offer moral advice. The Reply concludes that Professor Alschuler's loathing of plea bargaining stands in the way of realistic, incremental reform of a system that is here to stay. In the real world of guilty pleas, abolishing Alford and nolo contendere pleas is a realistic first step toward sending more honest, consistent moral messages to defendants, victims, and the public.

Plea bargaining, guilty plea, Alford, nolo contendere, no contest, criminal procedure, Alschuler, therapeutic jurisprudence

Abstract:
In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. Blakely failed, in contrast, because the historical record is weak, the Court was unwilling to be radical enough, and its bright-line rule is inflexible and impractical. This Essay concludes by considering whether originalism and formalism are compatible, which methodology takes precedence, and how much they influence other members of the Court.

Scalia, Supreme Court, originalism, formalism, constitutional, interpretation, criminal procedure, Blakely, Crawford, Apprendi, Booker, Confrontation Clause, sentencing

Abstract:
Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities.

The narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology serve only as poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology are valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community.

Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.

Abstract:
In Blakely v. Washington, the Supreme Court required that juries, not judges, find beyond a reasonable doubt facts that raise maximum sentences under sentencing guidelines. The Justices of the Supreme Court have equivocated on whether this rule is procedural or substantive. If it is substantive, it should automatically apply retroactively on collateral review, and the Ex Post Facto Clause should hamstring substantive legislative fixes. If it is procedural and not a watershed rule, then Blakely's rule should not be retroactive on collateral review and legislatures should enjoy more freedom to repair guideline systems.

The majority and dissenters in Apprendi v. New Jersey and Blakely seemed to be talking past each other instead of engaging these issues. The majority's rhetoric suggests that Blakely protects essential substantive definitions of crimes. Logically, then, it should be fully retroactive, but Justices in the majority have been inconsistent on this point. The dissenters, in contrast, view the majority's rule as a mindless formalism, a mere procedural hoop through which legislatures must jump. On this logic, Blakely's rule should be procedural and non-retroactive. Once again, though, the dissenting Justices have been inconsistent on this point.

Apprendi and Blakely have posed fundamental questions of what is an element of a crime and what justifies punishment. Sadly, Booker v. United States retreated from engaging these deep questions. And when the Court has addressed the right questions, it has given the wrong answers by shoehorning substantive rights into the Fifth and Sixth Amendments, which do not discuss the definitions of crimes and punishments. Instead, the Court should have addressed these concerns via the Eighth Amendment, which naturally links crimes to punishments.

Apprendi, Blakely, Booker, criminal procedure, Due Process Clause, Sixth Amendment, reasonable doubt, jury trial

Abstract:
This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade.

Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime - is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending?

Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.

Apprendi, Blakely, determinate sentencing, sentencing guidelines, criminal procedure, sentencing

Abstract:
The insiders who run the criminal justice system - judges, police, and especially prosecutors - have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders - crime victims, bystanders, and most of the general public - find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law's substantive goals. The gulf clouds the law's deterrent and expressive message and efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly Draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to better inform crime victims and other affected locals and to give them larger roles in criminal justice. It might be possible to better monitor and check insiders, but the prospects for empowering and educating the general public are dim.

criminal procedure, criminal justice, prosecutors, police, transparency, participation, punishment, trust, legitimacy, monitoring, agency costs

Abstract:
Traditionally, criminal procedure scholars have focused on the U.S. Supreme Court's constitutional doctrine. This doctrinal approach has dominated not only scholarship, but also teaching, and it continues to rule the leading casebooks. Younger scholars have begun to broaden criminal procedure scholarship to include non-judicial actors, state law, neglected topics such as plea bargaining and sentencing, and factors such as politics, race, and drugs. These changes have, however, been slow to hit the classroom, as until recently all the major casebooks focused on federal constitutional doctrine.

Now, however, two more real-world casebooks are available: Marc Miller & Ronald Wright's Criminal Procedures, and Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's Comprehensive Criminal Procedure. These two books enrich the mix of teaching materials, adding a welcome diversity of approaches to the existing mix. The doctrinal, constitutional approach is not bad, but these new books supplement this approach in rewarding ways.

This review essay compares these two real-word casebooks with five leading doctrinal casebooks. It discusses how the newer approach promises to enrich teaching and scholarship as well. Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures, such as forfeitures, commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship generally.

criminal procedure, casebook, Ronald Wright, Marc Miller, Debra Livingston, Joseph Hoffman, William Stuntz, Ronald Allen, teaching methods

Abstract:
In a recent issue of the Harvard Law Review, Professors Daniel Seidmann and Alex Stein argue that the Fifth Amendment privilege against self-incrimination helps the innocent. It does so, they contend, by encouraging the guilty to remain silent instead of concocting false alibis. Because juries know that the guilty will remain silent, Seidmann and Stein claim, juries will believe the alibis of the innocent at trial. Their argument rests on a game-theoretic account of how rational defendants should act during interrogation to maximize their chances of success at trial.

This Essay critiques Seidmann and Stein's article. Seidmann and Stein's elegant game-theoretic construct avails them little because their premises, methodology, and conclusion do not mirror reality. Though their theory predicts that rational suspects will remain silent, roughly eighty to ninety percent of suspects talk to the police. Seidmann and Stein acknowledge this fact but dismiss it as irrational behavior, because in their view rational suspects would remain silent in preparation for trial. By doing so, they succumb to the temptation to ignore messy facts that do not fit their neat theoretical model. And they, like most criminal procedure scholars, mistakenly view trials as the center of the universe and assume that rational suspects care mainly about maximizing their chances of success at trial. In fact, for most suspects trial is not a realistic option; as this Essay explains, most would prefer either to lie and throw police off the scent or confess and cooperate with the police. In short, Seidmann and Stein err in viewing interrogation as a mere prelude to the inevitable trial and focusing on the latter.

Seidmann, Stein, criminal procedure, right to remain silent, Fifth Amendment, privilege against self-incrimination, Miranda, innocent, interrogation, questioning

Abstract:
Criminal procedure is preoccupied with procedural values such as efficiency, accuracy, informed choice, and procedural fairness. This emphasis comes at the expense of the values of criminal procedure's sibling, substantive criminal law. This article examines Alford and nolo contendere pleas as case studies in how an obsession with these procedural values blinds courts and scholars to substantive values. Defendants can in effect plead guilty by entering Alford and nolo contendere pleas, even if they protest their innocence or refuse to admit guilt. These pleas risk not only convicting innocent defendants, but also impeding the reform, education, and condemnation of guilty defendants. These pleas leave psychological denial mechanisms in place, especially in the case of sex offenders. And regardless of how defendants respond, these pleas muddy the denunciation of the crime instead of vindicating victims and the community's moral norms (such as honesty and responsibility). Pleas should be reserved for those who confess. Trials are morality plays designed to acquit innocent defendants and teach lessons to guilty defendants who will not confess, their victims, and the community. This approach leads to a rethinking of plea procedures and the roles of lawyers, judges, and trials in our criminal justice system.

Criminal procedure, guilty plea, plea bargain, Alford, nolo contendere, no contest, procedural, substantive

Abstract:
This book chapter, forthcoming in Criminal Procedure Stories (Carol Steiker ed. forthcoming 2005), explains the story behind Brady v. Maryland and its broader significance in the field of criminal procedure. Brady is unusual among the great landmark criminal procedure decisions of the Warren Court. Brady requires prosecutors to give criminal defendants evidence that tends to negate their guilt or reduce their punishment. In other words, Brady mandates limited discovery instead of trial by ambush. Brady's test turns not on whether the prosecutor misled a jury or acted in good faith, but on whether the evidence is favorable and material to guilt or punishment. Thus, Brady marked a potentially revolutionary shift from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system. Yet, unlike Mapp v. Ohio and Miranda v. Arizona, Brady has sparked little public controversy or commentary. This may be because innocence is an appealing touchstone for criminal procedure, one with enormous potential to transform the adversarial criminal trial into a collaborative search for the truth.

Brady, however, has meant much less in practice than it could have. Few potential Brady claims come to light, and fewer defendants walk free, because our system remains an adversarial contest rather than a neutral inquiry into innocence. First, Brady requires prosecutors to look out for defendants' interests, and adversarial-minded prosecutors are poorly suited to do that job. Second, Brady is hard to implement and enforce. Favorable evidence is often spread across many agencies' files; defendants cannot learn of evidence hidden in these files; and judges are loath to reverse convictions long after trial. Empirical evidence shows that few Brady claims succeed and that most Brady material is ambiguous enough that prosecutors can easily overlook it. Third, Brady requires relatively little discovery, though statutes and rules have broadened discovery beyond the constitutional minimum. Much broader discovery would alleviate many of the adversary system's problems, at the cost of more witness intimidation, fabricated alibis, and revelation of undercover and confidential informants. Fourth, Brady applies only at the trial stage, but hardly any defendants go to trial any more. About 95% plead guilty, and Brady may not even apply to the plea bargaining process, when defendants need this information most. Finally, though Brady ignores the prosecutor's good faith (mens rea), its test continues to require some prosecutorial misdeed (actus reus). It does not focus exclusively on the defendant's guilt or innocence of the crime or punishment.

Brady's ringing rhetoric of innocence, then, is in some ways a hollow promise. Far from transforming the adversarial system into a quest for truth, it has merely tinkered at its margins.

criminal procedure, Brady, adversarial, inquisitorial, innocence, prosecutor, exculpatory, impeachment, Giglio

Abstract:
No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legislatures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individual cases. Scholars have largely neglected the most promising avenue of reform, namely changing the internal structure and management of prosecutors' offices. Leaders could do more to develop office cultures, norms, and ideals that value more than just maximizing conviction statistics. Hierarchical office structures and internal procedural and substantive office policies could promote deliberation, give fair notice, and increase consistency. Hiring, training, promotion, and tenure practices could better shape prosecutors and their behavior. Pay structures and feedback from judges, defense counsel, and victims could encourage good behavior. Finally, publishing more data on charges, convictions, plea bargains, and sentences could also improve accountability.

Criminal law, Prosecutorial discretion, accountability, management of prosecutors, election, oversight, feedback, open records, publication of prosecutorial data and information

Abstract:
This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally importantly, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

Abstract:
Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate conference committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency.

Part I of this article surveys the scope of the Feeney Amendment, emphasizing the breadth of its changes and how far it reaches beyond child-sex cases. Part II explores how the Feeney Amendment shifts power from district judges to prosecutors. While Congress's desire to reduce sentencing departures is understandable, an evenhanded approach should regulate not only judicial leniency, but also prosecutor-initiated departures. The result is even more imbalance in plea-bargaining power. Part III considers Congress's directives to the Sentencing Commission. Congress has lost trust in the Commission, which led it to rewrite sentencing law on its own without awaiting the Commission's expertise. The result is a blunderbuss solution to the narrower problems caused by a subset of judges. I hope that the Commission will respond by constraining prosecutorial as well as judicial discretion. If however the Commission continues on the present course, it will skew the already lopsided balance of power even more.

Feeney, Protect Act, sentencing, guidelines, Sentencing Commission, departures, Congress, criminal procedure, judges, prosecutors

Abstract:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.

death penalty, capital punishment, emotions, Kennedy v. Louisiana, Eighth Amendment, child rape, innocence, wrongful conviction, exoneration, deterrence, justice, mercy

Abstract:
Strickland v. Washington tries to guarantee criminal defendants effective assistance of counsel by individually reviewing each defense lawyer's performance after-the-fact. Despite much terrible lawyering, courts rarely reverse convictions. Why? Behavioral psychology provides a key insight: Judges have difficulty reviewing individual lawyers' performance in hindsight. While the Supreme Court and some commentators have worried about the dangers of Monday-morning quarterbacking and 20/20 hindsight, they have overlooked the greater danger that in retrospect, convictions appear inevitable. Psychologists call this the inevitability or confirmatory bias. Strickland's vagueness and its refusal to lay down more specific guidelines for counsel exacerbate this problem by leaving plenty of room for the inevitability bias. The poor records surrounding guilty pleas further exacerbate the problem. The better solution is to move from case-by-case retrospective review to prospective efforts to improve indigent-defender systems, whether through structural-reform litigation or legislative change.

Strickland, ineffective assistance, Sixth Amendment, psychology, hindsight, inevitable, defense counsel, appointed counsel, public defender, funding

Abstract:
The conventional academic wisdom criticizes the Rehnquist Court's self-incrimination case law as unprincipled, inconsistent, and results-oriented. This essay, originally presented at a George Washington Law Review symposium on the legacy of the Rehnquist Court, challenges that critique. I argue that the Court deserves more credit, both for the merits of its Fifth Amendment decisions and the way that it has reached them. In fits and starts, the Rehnquist Court retreated from both the expansive rationales and results that reached well beyond the Fifth Amendment's text and history. Out of respect for stare decisis, the Court left in place Miranda's warnings but restricted its exclusionary rule and largely declined to extend Miranda. The resulting doctrine is far from neat and theoretically pure, and the Court's sparse reasoning frustrates scholars. Nevertheless, the resulting rules are clear and narrow enough to guide law enforcement without unduly constraining it.

Viewed this way, the Rehnquist Court's changes merit praise. Slowly, over time, the Court moved toward a consensus that it might never have reached if it had tried to articulate and rely on divisive grand theories from the start. That consensus was more restrained and better grounded than the Warren Court's forays into the field. It came closer to reflecting the historical theory behind the Fifth Amendment itself. It also seems more in keeping with the judiciary's restrained, incremental role in social change.

And yet this stability came at a high price. Ultimately, the piecemeal approach was flawed in other ways. Miranda was a social experiment on a grand scale, and it has failed to yield the results promised. Demolishing the entire Miranda edifice in Dickerson could have spurred legislatures to enact more promising reforms, such as mandatory audio- and videotaping of police interrogations. Leaving it in place as a rigid constitutional rule freezes the flawed status quo in place.

criminal procedure, fifth amendment, Rehnquist Court, self-incrimination, Miranda, exclusionary rule

Abstract:
Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism to cultivate cooperation with national authorities and to select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from domestic lessons and pitfalls, husbanding scarce resources and minimizing haggling while still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It needs to reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims' rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions.

Criminal Law and Procedure, International Law, institutional design, retribution, ideology, federalism, international cooperation, plea bargaining, sentencing, adversarial system, inquisitorial system, safeguards, discovery, speedy trial, witness preparation, victims rights, ICC, International Crime

Abstract:
In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review. The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.

criminal law and procedure, sentencing, guidelines, discretion

Abstract:
George Fisher's new book, Plea Bargaining's Triumph, reviews the rise of plea bargaining in Middlesex County, Massachusetts, compares it with the history of plea bargaining elsewhere, and applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors.

Academics have already written many histories of plea bargaining, but this one is different, because Fisher brings an ex-prosecutor's perspective to bear. He adds an important dimension to the history of plea bargaining precisely because he looks at it with a prosecutor's eye. Instead of resting on broader social explanations of plea bargaining, Fisher emphasizes the caseloads, incentives, and powers of judges and prosecutors. His prosecutor's eye sees the actors' powers and incentives from a rational-actor perspective that purely academic historians often miss. He rehabilitates the role of caseload pressure in explaining bargaining's rise and explains how the explosion of civil cases encouraged judges to lighten their workloads by bargaining away their criminal cases.

The lesson of Fisher's history is that plea bargaining has triumphed because it has endeared itself to the actors with real power: judges, prosecutors, defense lawyers, and defendants all like it. Thus, plea bargaining is here to stay. Rather than writing more articles that treat jury trials as the norm, we should focus on making bargaining fairer. The way to do that is to check and balance prosecutors' charging and sentencing power, to create a true balance of bargaining power.

Plea bargains, bargaining, plea, fisher, criminal procedure, legal history

Abstract:
In Blakely v. Washington (2004), the Supreme Court held that any fact that raises the maximum sentence that a judge may impose by law must be found by a jury, not a judge, beyond a reasonable doubt. Blakely raises far more questions than it resolves. In this limited space, I address five clusters of issues. Part I discusses how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

Blakely, Supreme Court, criminal procedure, sentencing, Apprendi, Sixth Amendment, Fifth Amendment, jury, crime, Sentencing Guidelines

Abstract:
This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are constitutionally problematic, voluntary or even presumptive guidelines should be permissible so long as judges do not usurp the traditional role of juries and appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.

Criminal Law and Procedure, Sentencing, Guidelines, Experimentation

Abstract:
In Blakely v. Washington, the Supreme Court all but held that juries must find beyond a reasonable doubt facts that raise sentences under sentencing guidelines. This essay, originally prepared as testimony before the United States Sentencing Commission, explores the legal and political hurdles to reforming the federal Sentencing Guidelines. While removing all maxima from the existing guidelines (the so-called Bowman proposal) may work as an interim solution, it also may distort plea-bargaining behavior. Another proposal, to invert the Guidelines by rephrasing all aggravators as mitigators, is too gimmicky and would likely be held unconstitutional. The best long-term solution is to simplify and streamline the Guidelines down to a handful of the most commonly applied enhancements and to broaden sentencing ranges, to allow moderately more flexibility while retaining the Guidelines' binding force. This solution would track the best features of successful state guideline systems. The Commission should add more procedural protections to sentencing and limit but not abolish the relevant-conduct rules. These measures would best restore the balance of plea-bargaining power, empowering appellate and sentencing judges to check unilateral prosecutorial decisions.

Apprendi, Blakely, determinate sentencing, sentencing guidelines, criminal procedure, sentencing

Abstract:
Criminal defendants, who may be ashamed of their acts and feel guilty, are often loath to admit guilt to others or even themselves. Thus, many enter Alford or nolo contendere pleas, which refuse to admit guilt but accept punishment as if guilty. Defense lawyers and many judges and prosecutors like these pleas because they are efficient and avoid the ordeals of trials.

This book chapter criticizes Alford and nolo contendere pleas, because their efficiency comes at a steep price. The defendants who most want to use these pleas are in deepest denial, but they are the ones who most need to confront and admit guilt as a first step towards moving past it. The legal system can challenge their denials at trial, or it can allow guilty defendants to persist in it. Guilty defendants who remain in denial resist successful treatment and are much more likely to reoffend. They also deny victims closure, catharsis, and vindication. And they frustrate society's desire for clear, unambiguous resolutions and moral messages. For those defendants who cannot or will not admit guilt, the law should insist on jury trials, to vindicate the innocent and confront the guilty defendants. In short, jury trials are valuable morality plays. Alford and nolo contendere pleas short-circuit this process, exalting efficiency at the expense of key therapeutic and moral goals of the criminal justice system.

Alford, nolo contendere, no contest, plea, guilty plea, plea bargain, Alschuler, criminal, criminal procedure, sex offender, sex offense

Abstract:
Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance.

This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better. Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work.

First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward. Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete. Prosecutors' multiple constituencies and goals require subtler measures. A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does. This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies.

The next step is to devise incentives to encourage success on these metrics. Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed. A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success. More radical solutions could range from hourly rates to performance-based bonuses to contingency fees. While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying.

Criminal law, prosecutorial discretion, prosecutorial incentives, accountability, management of prosecutors, conviction rates, oversight, feedback, victims, peers, compensation, promotion, bonuses, contingency fees

Abstract:
This essay discusses how the Supreme Court's decision in Apprendi v. New Jersey deprives defendants of sentencing hearings by forcing them to allocute to sentence-enhancement issues when they plead guilty. Apprendi's problem is that it is designed for jury trials, even though the overwhelming proportion of cases today are resolved by guilty plea. The essay goes on to discuss alternative rules better suited to guilty-plea cases. For example, courts could develop a due process of sentencing, which would guarantee defendants opportunities to confront and cross-examine witnesses and to use compulsory process at sentencing. Perhaps the better solution is for judges and prosecutors to exercise the discretion they still have to counteract Apprendi's perverse effects. Judges, for example, can do so by refusing to penalize defendants who go to trial solely to preserve hearing rights that they had before Apprendi.

Apprendi, guilty plea, plea bargain, sentencing, Sentencing Guidelines, criminal law, criminal procedure

Abstract:
In Apprendi v. New Jersey, the Supreme Court of the U.S. required, at a minimum, that juries find beyond a reasonable doubt any fact that increases a defendant's statutory maximum sentence. This watershed decision broke sharply with two centuries of judicial discretion to find facts at sentencing under lower standards of proof.

Apprendi left open large questions about its scope: would it change indictment and plea procedure? Would it be retroactive? Would Apprendi errors be harmless? Would Apprendi invalidate judicial mandatory minimum sentences or sentencing guidelines? Over the last three years, state courts have struggled to answer these questions. And they have by and large reached an unusual consensus: Apprendi should extend no further than its narrow holding requires, limiting only facts that raise statutory maximum sentences. This piece canvasses this development and asks why it developed this way.

State courts have limited Apprendi not simply because they follow the Supreme Court in lock step or because they are mindless bastions of conservatism. The underlying lesson is that the state courts saw Apprendi's errors and reacted to limit them. They remained faithful to Apprendi's core holding, but they brought their practical experience to bear in damage control by extending it no further. A consensus developed that Apprendi was wrongly decided and should go no further than it must. This brings out a new point about federalism. States are often praised as laboratories of experimentation, going beyond federal minima. But here the process worked well in reverse: the Supreme Court went too far, and the states broke the expansion of what they rightly saw as a disruptive mistake. The moral of the story is that state courts are valuable participants in our cooperative federalism of criminal procedure as much for what they refrain from doing as for what they do.

Apprendi, federalism, reasonable doubt, jury trial, state courts

Abstract:
This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment.

criminal justice, criminal procedure, mercy, pardon, forgiveness, clemency, parole, prosecutors, rule of law, discretion, prosecutors

Abstract:
This short comment responds to Susan Bandes' assertion that putting emotions "at the center of the debate about [capital punishment's] fate" will lead the death penalty to "die a well-deserved death." On the contrary, reengaging with emotion will reinvigorate capital punishment. Capital emotions are more nuanced than Bandes suggests in distinguishing which killers are so evil that they deserve the ultimate penalty. She prefers the warm-and-fuzzy emotion of empathy, but offers little justification for squelching the visceral capital emotions. Perhaps Vulcan criminal justice would not need to vent outrage at the worst killers, but human criminal justice must and inevitably will.

criminal justice, criminal procedure, capital punishment, death penalty, emotion, capital emotions

Abstract:
Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that jury trials are the norm. In the real world, however, fewer than four percent of defendants go to trial before a jury; the vast majority plead guilty. This Article analyzes Apprendi as a case study in the shortcomings of trial-centered law and scholarship. This benign-seeming trial right will have unintended and perverse consequences in the real world of guilty pleas and Sentencing Guidelines. Apprendi's rule will deprive many defendants who plead guilty of sentencing hearings, promote prosecutorial arbitrariness, and undercut legislative guidance of unelected sentencing commissions. Instead of creating new trial rights that defendants cannot afford to exercise, the Court and scholars should instead focus on regulating guilty pleas and sentencing hearings. This Article proposes alternative solutions better adapted to the real world of guilty pleas and sentencing, such as preplea notice of sentence enhancements and procedural protections at sentencing. This Article concludes by suggesting more broadly how criminal procedure should move beyond its preoccupation with trials to improve the real world of guilty pleas and sentencing.

Apprendi, guilty pleas, plea bargaining, sentencing, Sentencing Guidelines

Abstract:
In Blakely v. Washington, the Supreme Court held that juries, not judges, must find facts that raise sentences under state sentencing guidelines and must find these facts beyond a reasonable doubt. The decision has thrown lower courts into disarray, with many courts striking down the Federal Sentencing Guidelines entirely and others warping them by knocking out the upward-enhancement provisions. The Blakely majority envisioned a regime of jury sentencing trials, but these days very few cases make it to juries; most plea bargain. The more likely result is more mandatory minimum penalties, that will ironically mean even more pressure to plea bargain and fewer jury trials in the long run.

Apprendi, Blakely, Supreme Court, criminal procedure, sentencing, jury, Fifth Amendment, Sixth Amendment, Sentencing Guidelines

Abstract:
In Apprendi v. New Jersey (2000), the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This Term, in Ring v. Arizona, the Court will decide whether to extend Apprendi to ban capital sentencing by judges. This op-ed essay analyzes the Apprendi debate as a clash of the historical ideal of individualized justice by juries versus practical concerns about equality and efficiency. This essay supports the continuation of judicial capital sentencing, as it is a promising tool for combatting racial disparities in the death penalty.

Apprendi, Ring, death penalty, capital punishment, race, sentencing, jury, criminal procedure

Abstract:
Though in theory federal criminal law applies uniformly in all places, in practice federal charging, plea bargaining, and sentencing practices vary widely from place to place. Sentencing disparities are good when they reflect local knowledge about local crime problems and concerns. They are bad when they spring from bias, local lawyers' and judges' hostility to national policy choices or perhaps when they reflect disagreement with federal strategies. This Article critiques fast-track programs, which award huge discounts in immigration and drug cases along the southwest border, as bad variation that undermines the ideal of national uniformity. It then considers the wide local variations in sentencing cooperating defendants. Procedural and substantive policies within the Department of Justice and more specific sentencing guidelines can bring greater equality and consistency to these decisions.

criminal procedure, federal sentencing, Sentencing Guidelines, fast-track, structured sentencing, sentencing guidelines, disparity, uniformity, equality

Abstract:
This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive.

Remorse, apology, forgiveness, mercy, clemency, pardon, parole, sentencing, criminal procedure, criminal justice

Abstract:
In Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This essay addresses how Apprendi may affect the allocation of power among the various actors in the criminal justice system. Part I predicts that legislatures are likely to exploit a number of loopholes to evade Apprendi, either by redrafting sentencing enhancements using different terminology or by delegating even more power to judges and sentencing commissions. Part II forecasts a likely shift of power from judges to prosecutors, exploring how Apprendi undercuts judges' power to check prosecutorial charging decisions. The essay concludes with more general thoughts about the kinds of institutional-power questions judges and academics should ask in evaluating new rules of criminal procedure.

Apprendi, guilty plea, plea bargain, sentencing, Sentencing Guidelines, criminal law, criminal procedure

Abstract:
This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test.

The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into the same constitutional boxes as elements of crimes, nor try to divine some nonexistent clear rule in the sparse text and history of the Sixth Amendment. Instead, the Court could have explicitly weighed the due process need for regulating the under-regulated sentencing phase. This approach would have led to more flexible, sensible weighing of the need for confrontation, cross-examination, rules of evidence, double jeopardy, and proof by a preponderance or clear and convincing evidence at sentencing.

Criminal sentences, Federal Sentencing Guidelines, maximum sentences, juries, Apprendi, Blakely, Booker, Sixth Amendment, judicial discretion

Abstract:
This symposium essay speculates about how Booker's loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing. Prosecutors' punishment intuitions and the strong white-collar defense bar will keep white-collar sentencing from growing as harsh as drug sentencing, but the parallels are nonetheless ominous. The essay suggests that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and adding shaming punishments and apologies to give moderate prison sentences more bite.

Criminal sentences, Federal Sentencing Guidelines, white collar crime, plea bargaining, Apprendi, Blakely, Booker, Sarbanes-Oxley

Abstract:
This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well.

In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach us. But to restore victims and criminals who commit serious crimes, the state must first punish before it and we can forgive. Cheap grace and promiscuous forgiveness demean the crime and the victim.

Criminal sentences, restorative justice, punishment, deterrence, incapacitation, crime victims

Abstract:
This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This narrow, utilitarian approach downplays the importance of public faith and confidence in the criminal justice system. It also risks undercutting the pleas of guilty defendants, who could later change their minds and tell themselves and others that their pleas were simply legal fictions, leaving them in denial and frustrating victims. Most fundamentally, Bowers' utilitarianism sacrifices the deontic command not to facilitate convicting the innocent. Though the massive flaws in criminal justice are frustrating, we must not sacrifice justice as our ideal.

Criminal sentences, justice system, plea bargaining, legal fiction, recidivists, wrongful conviction, convicting the innocent, utilitarianism, guilty plea, innocent defendants, innocence, criminal procedure

Abstract:
This essay surveys the sentencing issues left open by Rita v. United States and considers how the presumption of reasonableness is likely to operate in practice and how rebuttable it is, the roles of safe harbors and individual judges' policy disagreements, and the importance of Justices Stevens and Ginsburg as the swing Justices in this area. This line of cases has drifted far from its roots in a Sixth Amendment concern for juries. Though the resulting sentencing policies may be substantively desirable, the Court cannot articulate how they are rooted in the Sixth Amendment's concern for juries.

Criminal sentences, Federal Sentencing Guidelines, maximum sentences, juries, Sentencing Reform Act, Apprendi, Blakely, Booker, Sixth Amendment