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At the same time, a lawyer who demands an offer minimizing his client’s expected punishment may not get it, for prosecutors may be the ones who forsake the economic model. Like my firstyear law students, they may recoil from placing the greatest pressure to plead guilty on defendants who may be innocent and/or from offering sentences far lighter than they believe honest-to-God offenders deserve. Although these prosecutors may engage in odds bargaining, they may not take the process to its logical conclusion. When prosecutors refuse in some cases to make offers that overbalance the defendants’ chances of acquittal, the defendants in these cases will, as a group, achieve better results by inFor a more sophisticated and complete examination of why plea-bargaining reality often bears little resemblance to the economic model, see Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463 (2004).

85. Alschuler, supra note 76, at 54.

86. See text at notes 37-43 supra.

87. See text at notes 59-61 supra.

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696 Duquesne Law Review Vol. 51

sisting on trial. There may be enough of them to produce findings like those Abrams reported.

To reiterate, departures from the economic model by either prosecutors or defense attorneys could produce findings like those of David Abrams. Findings like his, however, do not conclusively establish any departure from the model. In the small minority of cases that go to trial, negotiators may differ in their estimates of the likelihood of conviction and/or other circumstances affecting the bargaining calculus, and the predictions of defendants and their lawyers generally may be better than those of prosecutors.88

D. A Hard Look at the Post-Trial Baseline

As noted above, Justice Scalia and the other Lafler-Frye dissenters view plea bargaining as a way for an offender to “to serve less time than the law says he deserves.”89 Justice Kennedy and the other justices in the Lafler-Frye majority reply that the sentences imposed following conviction at trial often are undeserved.

Many of these sentences are more severe “‘than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.’”90 Although the majority praises plea bargaining as beneficial to both parties, its recognition that post-trial sentences often are imposed to gain bargaining leverage makes the process indefensible— different in degree but not in principle from the transaction proposed by a gunman who demands your money or your life.91 Here is a multiple-choice question. Which of the following six propositions best captures your view of the partly empirical, partly

conceptual issue that divided the majority and dissenting justices:

88. I do not consider this last hypothesis particularly likely. To the contrary, information asymmetries suggest that prosecutors should have the edge in estimating probable trial outcomes. Although defendants know better than prosecutors whether they are guilty or innocent, this information might not make them better predictors. Indeed, an unwillingness to face the fact that juries sometimes convict the innocent could distort an innocent defendant’s predictions. Lawyers generally regard both innocent and guilty defendants as too optimistic about their prospects at trial. See BIBAS, supra note 41, at 55. Moreover, professional estimates of trial outcomes are likely to be superior to amateur estimates, and unlike defense attorneys, prosecutors need not respect the wishes of amateur clients. Prosecutors are likely to know more than defendants and their lawyers about the most important determinant of trial outcomes, the strength or weakness of their evidence.

89. Lafler v. Cooper, 132 S. Ct. 1376, 1398 (2012) (Scalia, J., dissenting).

90. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (quoting Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1034 (2006)).

91. See text at notes 53-57 supra.

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Does plea bargaining reward defendants who plead guilty or penalize those who stand trial?

A. An Incoherent Question. The concepts of harshness and leniency are relative and draw meaning only from each other. “If we are ‘lenient’ toward [defendants who plead guilty], we are by precisely the same token ‘more severe’ toward [those who plead not guilty].”92 Asking whether plea bargaining rewards defendants who plead guilty or penalizes defendants convicted at trial is incoherent.

When bargaining does one thing, it also does the other.

B. An Unanswerable Question. Whether plea bargaining rewards defendants who plead guilty or penalizes defendants convicted at trial is a sensible query, but it is not a question that anyone can resolve. In principle, one can envision a “Goldilocks” or “just right” sentence—the sentence an offender deserves or the sentence that best accomplishes the law’s forward-looking, crime-prevention purposes. If a defendant who pleads guilty receives a sentence less severe than the Goldilocks sentence, he is rewarded. Such a sentence may short-change the public, but it benefits him. At the same time, an offender who receives a sentence more severe than the Goldilocks sentence because he has stood trial is unfairly penalized.

The constitutional right to trial means at a minimum that the government may not make standing trial a crime. On this view, the concepts of harshness and leniency need not be relative; they can describe deviations in opposite directions from a moral baseline. In practice, however, no one can identify the Goldilocks sentence, and no one can know whether plea bargaining rewards guilty pleas or penalizes exercise of the right to trial. It is as likely to be one thing as the other.

C. A Formalist Answer: The Law Deems Post-Trial Sentences Deserved. Although no one may know the Goldilocks sentence or what punishment an offender deserves, one

92. Scott v. United States, 419 F.2d 264, 278 (D.C. Cir. 1969); accord People v.

Earegood, 162 N.W. 2d 802, 812 (Mich. Ct. App. 1968), rev’d in part, People v. Earegood, 173 N.W.2d 205 (Mich. 1970); Comment, The Influence of the Defendant’s Plea on Judicial Determination of Sentencing, 66 YALE L.J. 204, 220 (1956).

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D. One Realist Answer: Post-Trial Sentences are Imposed Because Offenders Deserve Them, While Defendants Who Plead Guilty are Rewarded. To judge whether plea bargaining rewards defendants who plead guilty or instead penalizes those convicted at trial, one need neither know the Goldilocks sentence nor indulge in the fiction that post-trial sentences must be considered deserved simply because officials have imposed them. After examining the actual motives of sentencing authorities, the likely motives of people in their situation, and the consequences of their choices, one can make a plausible guess about what punishments would be imposed in a regime without plea bargaining. If all defendants in a system without bargaining would receive the punishments now imposed on defendants convicted at trial, plea bargaining can fairly be said to reward those who plead guilty. These defendants achieve better results in a system with plea bargaining than they would in a system without it. At the same time, defendants who stand trial would be treated identically in both systems. And in fact, an examination of the American legal system indicates that it fits this pattern.

Current post-trial sentences reflect bona fide determinations of desert and nothing else. In the absence of plea bargaining, these sentences probably would be imposed across the board.

E. An Opposing Realist Answer: Post-Trial Sentences are Inflated to Discourage Exercise of the Right to Trial. As suggested in the preceding answer (D), the appropriate inquiry is what sentences offenders would receive in a

93. See Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting) (declaring that plea bargaining gives defendants a opportunity “to serve less time than the law says [they] deserve[].”). But see text at notes 104-05 infra.

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F. None of the Above. Please select this answer if you know the Goldilocks sentence.

Before giving your final answer to this multiple-choice question, consider another thought experiment. Imagine a hypothetical democracy called Becker in which, until recently, everyone embraced the penal philosophy of Jeremy Bentham. Everyone in Becker believed that the function of criminal punishment was deterrence and that penalties should be calculated to ensure that crime does not pay.95 Of course not every crime is detected. The people of Becker concluded that penalties should be determined by multiplying the gain an offender derived from committing his crime times the number of crimes he could have been expected to commit before being convicted. For several reasons, they also concluded that judges should not impose punishments much more severe than those provided by this calculus. First, more severe punishments would cause offenders to suffer needlessly, and “all punishment in itself is evil.... [I]f it ought at all to be admitted, it ought only to be admitted in as far as it promised to exclude some greater evil.”96 Second, imposing punishments more severe than necessary would waste public funds. And third, effective deterrence requires grading crimes and reserving more severe penalties for more severe crimes. If—like murderers—kidnappers, armed robSee Alschuler, supra note 78, at 1089 (describing the remark a Chicago judge made to Dallin H. Oaks after telling Oaks that, if his client declined an offer of two-to-five years and was convicted at trial, the judge would impose a sentence of twenty years).

95. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL.

ECON. 169, 169 (1968); William M. Landes, Optimal Sanctions for Antitrust Violations, 50 U. CHI. L. REV. 652 (1983).

96. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in JEREMY BENTHAM AND JOHN STUART MILL, THE UTILITARIANS 162 (1961).

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bers, and rapists were subject to capital punishment, they might see no reason not to kill their victims.

For many years, Becker implemented its Benthamite penology without variation. The people of Becker recently realized, however, that practical necessity required them to discourage exercise of the right to trial. Judges then were instructed to impose more severe sentences following convictions at trial than following pleas of guilty. Moreover, they were told to make the difference so substantial that 95% of all offenders would plead guilty.

Social science research reveals that the new policy has been implemented. With every other relevant variable held constant, the sentences currently imposed following convictions at trial are much more severe than those imposed following pleas of guilty, and 95% of all convictions in Becker are by plea.

Here’s the thought experiment. The judges could have complied with Becker’s new policy either by lowering the sentences of defendants who pleaded guilty below the Benthamite baseline or by increasing the sentences of defendants convicted at trial above it.

These judges are sane, smart, public-spirited people. Can you guess which they did?

Do you suppose that the judges of Becker reduced the sentences of defendants who pleaded guilty so that these sentences no longer overbalanced the benefit offenders derived from committing their crimes? Do you imagine that they—or that any polity—would create a regime in which crime does pay for 95% of all offenders? Or does it seem more likely that the judges of Becker still sentence the vast majority of criminals to the punishment needed to deter crime while imposing additional punishment on a tiny minority to save the cost of trials?97 Becker is only one of several hypothetical jurisdictions that recently rejected the judgment of the Framers of the U.S. Constitution that the cost of trials is worth paying. Each of these jurisdictions now sentences defendants who are convicted at trial more severely than those who plead guilty. The former penology of the other hypothetical jurisdictions, however, differed from the prior

97. Odds bargaining often could lead deterrence-minded authorities to impose sentences below the Benthamite baseline; some deterrence is better than none. The issue posed by the thought experiment, however, is how a deterrence-minded polity probably would accomplish the objectives of costs bargaining. Would it be more likely to impose sentences below the Benthamite baseline in 19 cases out of 20 or to impose a sentence above the baseline in one? Recall that lowering the baseline at all leaves crime a profitable enterprise.

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Summer 2013 Two Band-Aids 701

penology of Becker. Perform the same thought experiment with them.

When an offender was convicted in Kant, judges previously imposed the sentence he deserved. Do you suppose that judges in Kant now sentence 95% of all offenders less severely than they deserve? In Greenwood, judges formerly assessed the dangerousness of each offender and sentenced him to a long enough prison term to protect the public through incapacitation. Do you suppose the judges of Greenwood now decline to incapacitate the vast majority of offenders long enough to protect the public? In Wootton, judges formerly required offenders to undergo the treatment they believed the offenders needed to cure their socially harmful behavior. Do you suppose these judges now require 95% of all offenders to undergo only part of this treatment?

People devise rationalizations for their self-interested conduct.

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