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Shortly after endorsing the Bibas and Barkow observations, however, the Frye majority disregards their implications. Justice Kennedy writes, “To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties.”56 If post-trial sentences are unjust and are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining surely merits criticism. This process then benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Compared to death at the hands of the gunman, “your money or your life” is a great offer. Proposals commonly are treated as coercive, however—as “threats” rather than “offers”—when refusing them would leave recipients worse off than they ought to be.57

54. Frye, 132 S. Ct. at 1407 (quoting Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1034 (2006)). Bibas’s remark can be read as saying only that the sentences imposed following trials depart from the statistical norm (something that no one would deny). Barkow’s statement says more clearly that these sentences (or many of them) depart from an ethical norm as well.

55. Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting).

56. Id. at 1407 (majority opinion).

57. See ALAN WERTHEIMER, COERCION passim (1987); Albert W. Alschuler, Constraint and Confession, 74 DENVER U.L. REV. 957, 962-67 (1997) (reviewing several approaches to defining coercion and explaining why the better ones focus on the wrongfulness of proposals rather than the supposedly overborne wills of the people receiving them). See generally Scott Anderson, Coercion, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Winter 2011), http://plato.stanford.edu/entries/coercion/#ThrBas.

Although distinguishing between rewards and penalties makes sense in many contexts, I have argued that officials should employ neither penalties nor rewards to induce confessions or pleas of guilty. See Alschuler, supra note 57, at 967-69. The common law took the same position, declaring that a guilty plea or confession induced by either a promise or a threat was involuntary. See, e.g., Rex v. Warickshall, 168 Eng. Rep. 234 (Cr. Cas.

1783) (holding a confession obtained “by promise of favour” inadmissible); Hopt v. Utah, 110 U.S. 574, 584 (1884) (declaring that a confession must be “uninfluenced by hope of reward or fear of punishment”); Wilson v. United States, 162 U.S. 613, 622 (1896) (declaring a confession “inadmissible if made under any threat, promise, or encouragement of any hope or favor”); Bram v. United States, 168 U.S. 532, 542-43 (1897) (declaring that a confession may not be received in evidence unless it is “free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight”).

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Choosing the appropriate ethical baseline is not simply a matter of perspective, and, when one seriously examines our criminal justice system, Bibas, Barkow, and the Lafler-Frye majority appear to have it right. Before I explain why, however, it seems appropriate to consider the suggestion of a participant in this symposium that plea bargains really aren’t bargains at all.

B. An Unconvincing Study

On one point, David Abrams’ empirical findings match almost everyone else’s. He reports that the sentences imposed following convictions at trial are substantially more severe than those imposed following pleas of guilty.58 Abrams maintains, however, that this frequently repeated finding answers the wrong question.

In Abrams’ view, earlier studies erred by considering only defendants who were convicted by guilty plea or at trial.59 His study includes acquitted defendants as well. It treats the sentences of these defendants as zero. With these “sentences” of zero included in the mix of post-trial sentences, the post-trial sentences no longer appear to be more severe than those imposed following guilty pleas. To the contrary, they appear to be much less severe.60 As a group, defendants who have taken their cases to trial appear to have achieved better results than those who have pleaded guilty.61 Abrams does not spell out what lesson he would draw from this finding, but he seems to suggest that plea bargains are usually bad deals for defendants. A risk-neutral defendant who discounts his probable post-conviction sentence by the likelihood of acquittal and compares it to the prosecutor’s offer should usually reject the offer and go to trial. This defendant then will either win big or

58. David S. Abrams, Is Pleading Really a Bargain?, 8 J. EMPIRICAL LEGAL STUD. 200, 209 (2011).

59. See id. at 202-03.

60. See id. at 209. The reason why prior sentencing studies focused on convicted rather than acquitted defendants is not difficult to discern. A finding that some offenders received more severe sentences than other, equally culpable offenders only because they exercised their right to trial may be cause for concern. A finding that offenders received more severe sentences than non-offenders, however, is cause for celebration, not concern. This finding is also unsurprising.

61. When Abrams regressed on variables like age, race, sex, and type of offense, the correlation he found between insisting on trial and receiving a less severe sentence remained strong. I summarize Abrams’ central finding by saying that, as a group, defendants who stood trial received less severe sentences than defendants who pleaded guilty, but one could also say things like, “As a group, young white men who stood trial for weapons offenses received less severe sentences than young white men who pleaded guilty to weapons offenses.” Disaggregation of this sort would not affect the analysis that follows.

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lose big, but insisting on trial will on balance reduce his expected punishment.62 For reasons I will explain shortly, I do not credit Abrams’ principal finding.63 Even if I accepted this finding, however, I would not draw the lesson Abrams invites readers to draw. The discovery that defendants who went to trial achieved better results as a group than defendants who pleaded guilty does not show that any defendant in either group miscalculated. This finding may indicate only that plea bargains were good deals for defendants who took them and bad deals for those who didn’t.

Every defendant in Abrams’ sample who was acquitted might have discounted his expected post-trial sentence by the likelihood of acquittal and might have matched this discounted sentence against the prosecutor’s offer, and every one of them might have made the correct choice. Every defendant who pleaded guilty also might have discounted the expected post-trial sentence by the likelihood of acquittal, and every one of them might have made the correct choice as well.64 Imagine, for example, a jurisdiction with a marvelous public defender system, the County of Dershowitz. Capably advised defendants in Dershowitz accept only offers that are truly in their interests. The District Attorney of Dershowtiz, however, is perverse. One day, he charges ten thousand men of Harvard with mayhem simply because a near-sighted witness, Magoo, reported seeing these men covered in crimson. The ten thousand men of Harvard demand trials, and all of them are acquitted. Abrams records their sentences as zero, and ten thousand sentences of zero bring the mean post-trial sentence to a tiny fraction of the mean

62. Abrams embraced this thesis more clearly in the


of his article than in the

article itself:

Conventional wisdom suggests that defendants are better served by entering into a plea bargain, to avoid what is known as the “trial penalty.” In this article I present evidence that this notion is likely mistaken. In OLS regressions using data from Cook County state courts, I find that a risk-neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain. I also employ an IV approach to the question and, while the instrument is weak, the results are consistent with the OLS: defendants are better off going to trial.

Abrams, supra note 58, at 200 (abstract).

63. Many of the defendants whom Abrams described as standing trial did not in fact stand trial. See text at notes 65-74 infra.

64. The defendants who were convicted at trial and received more severe sentences than those in the two other groups can be said in retrospect to have made erroneous choices, but even they might have made appropriate judgments (or bets) ex ante.

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post-guilty-plea sentence. The existence of ten thousand wrongly accused Harvard men, however, reveals nothing about the wisdom of the choices made by the ably advised defendants who pleaded guilty before the district attorney went berserk. It also reveals nothing about the wisdom of the many defendants who are scheduled to plead guilty in Dershowitz tomorrow. The agreements these defendants entered with the district attorney may indeed have been bargains.

In any event, Abrams does not convince me that, with acquittals included, post-trial sentences are less severe than post-plea sentences. Abrams studied official court data from Cook County, Illinois—“a data set containing 42,552 cases initiated between 1997 and 2001 that were completed by the end of 2004.”65 Because more than 40,000 felony cases were resolved annually in the Circuit Court of Cook County during this period,66 the data set does not appear to include all of the cases that began and ended within the study period. Indeed, Abrams acknowledged in his presentation at this symposium that his data set did not include all cases.67 Abrams also did not reveal whether the data included misdemeanor as well as felony cases, but they seem to consist almost entirely of felony cases.

Most of Abrams’ study is presented in the obscure language of empirical economists, but I believe I understand Table 2.68 This table divides defendants into those who pleaded guilty and those who stood trial. One column then reveals what proportion of defendants in various offense categories were convicted.

It comes as no surprise that 100% of the defendants who pleaded guilty were convicted, but the percentage of convicted defendants in the group that stood trial could raise eyebrows. Abrams reports conviction rates of 50% for defendants tried on drug possession charges, 48% for those tried on drug distribution charges, 36% for those tried on weapons charges, 47% for those tried on

65. Abrams, supra note 58, at 208.

66. See, e.g., ANNUAL REPORT OF THE ILLINOIS COURTS, STATISTICAL SUMMARY 2001, Caseload and Statistical Records, Felony Dispositions and Sentences by County Circuit Courts of Illinois, Calendar Year 2001 (hereinafter “ANNUAL REPORT”), http://www.state.il.us/court/supremecourt/AnnualReport/2001/StatsSumm/pdf/cir_caseload &stat.pdf (reporting that 42,453 defendants were charged with felonies in the Circuit Court of Cook County during calendar year 2001).

67. Beyond mentioning that all of the study cases were resolved at one Cook County courthouse (2600 South California Avenue), Abrams did not indicate how the data set was compiled.

68. See Abrams, supra note 58, at 212 tbl. 2.

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theft charges, 53% for those tried on burglary charges, 43% for those tried on robbery charges, 47% for those tried on car theft charges, and 55% for those tried on charges of assault and battery.

In most offense categories, more defendants appear to have been acquitted than convicted. In no offense category did the conviction rate exceed 55%, and in one category it was only 36%.69 Abrams evidently included a large number of sentences of zero in his mix of post-trial sentences. Although he did not supply the number, it seems a reasonable guess that roughly half of the sentences in his post-trial mix were sentences of zero. It was as though the 10,000 wrongly accused men of Harvard had marched from the County of Dershowitz to the County of Cook.

I have lived in Cook County; I have practiced and taught law in Cook County; I have studied Cook County; and Professor Abrams’ Cook County is not the one I know. Statistics included in the Annual Report of the Illinois Courts permit one to calculate the conviction rates in felony cases tried in Cook County in 2001, a year that was both typical and included in Abrams’ study period. In that year, 75% of the 301 felony defendants tried by juries and 81% of the 10,996 felony defendants tried by judges were convicted.70 These conviction rates are similar to those reported by other American jurisdictions.71 The disparity between the normal Cook County conviction rates reported by the Illinois courts and the surprisingly low conviction rates reported by Abrams is apparently explained by the fact that Abrams treated all defendants whose cases ended without conviction as though they had been acquitted. Abrams in fact acknowledged during his presentation at this symposium that many of the defendants whom his article described as “acquitted at trial” were not acquitted at trial at all.

The Annual Report of the Illinois Courts includes a catchall category of terminated cases called “remaining balance.” This category “includes such dispositions as transfers to inactive/fugitive warrant calendar, extradition proceedings, and dismissed on motion of state.” The number of cases in this category in Cook CounId.

70. See ANNUAL REPORT, supra note 66.

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