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If the changes that occurred in Becker, Kant, Greenwood, and Wootton had happened more gradually, even the authors of these changes might not have realized just what they were doing. These legislatures, sentencing commissions, prosecutors, and judges might have been unwilling to sentence most offenders less severely than they deserved or to leave crime a paying proposition. Instead, they might have conserved public resources by sentencing offenders convicted at trial more severely. Officials might nevertheless proclaim (and even believe) that they never sentenced anyone more severely than he deserved or more than public protection required.98 Considering what officials would have done in a regime without plea bargaining may offer greater insight than asking what officials believe they are doing.99 Like everyone else, criminal justice officials can convince themselves of many things.

The thought experiment you just performed may have persuaded you that officials are more likely to pursue cost-saving objectives by penalizing exercise of the right to trial than by sacrificing the purposes of criminal punishment (at least in part) for 95% of

98. I have examined the claim that defendants who plead guilty deserve lighter sentences than those convicted at trial in Alschuler, supra note 50, at 661-69, 718-23.

99. Economists speak of “revealed preferences.” They maintain that people’s preferences are shown, not by what they say, but by what they do. See, e.g., Paul A. Samuelson, Consumption Theory in Terms of Revealed Preference, 15 ECONOMICA 243, 243 (1948); Hal R. Varian, Revealed Preference, in SAMUELSONIAN ECONOMICS AND THE TWENTY-FIRST CENTURY 99 (Michael Szenberg, Lall Ramrattan & Eric A. Gottesman, eds., 2006). The thought experiment presented in text could be regarded as asking about “hypothetical revealed preferences” or even “unrevealed revealed preferences.” File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

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all offenders. If you remain in doubt, however, consider one more jurisdiction, the United States of America.

The United States is more dependent on plea bargaining than any other nation in the world. It also incarcerates a higher proportion of its population than any other nation.100 Could the United States truly have achieved the world record for mass incarceration101 while sentencing 95% of all offenders less severely than they deserved? Until the Lafler-Frye majority acknowledged that post-trial sentences often were inflated to encourage guilty pleas, the official story seemed to be that 95% of the 2,292,133 Americans behind bars102 had been rewarded for their pleas of guilty and therefore sentenced less severely than they deserved (or than was necessary to fully protect the public). Moreover, some observers, including the Lafler-Frye dissenters, still insist that 95% of America’s prisoners received undeserved breaks. These lucky millions gambled and beat the house.103 Justice Scalia contends that at least the defendants who entered plea agreements were sentenced less severely than the law says they deserve.104 But what law says that the punishments they would have received following conviction at trial are the ones they deserved? One federal law says that all sentences must “comply with” a list of approved purposes of punishment. These purposes include providing just punishment for the offense. They do not include reducing court costs or ensuring conviction in doubtful cases.105 Do judges follow this statute when defendants are convicted at trial but not when they plead guilty? Some officials barely maintain the fiction that post-trial sentences are deserved.

100. ROY WALMSLEY, WORLD PRISON POPULATION LIST 1 (2011), available at http://www.idcr.org.uk/wp-content/uploads/2010/09/WPPL-9-22.pdf (“The United States has the highest prison population rate in the world, 743 per 100,000 of the national population, followed by Rwanda (c. 595), Russia (568), Georgia (547), U.S. Virgin Is. (539), Seychelles (507), St Kitts & Nevis (495), British Virgin Is. (468), Belize (439), Dominica (431), Bermuda (428), Grenada (423) and Curacao (422).”).


102. WALMSLEY, supra note 100, at 3.

103. See Lafler v. Cooper, 132 S. Ct. 1376, 1398 (2012) (Scalia, J., dissenting). Presumably 95% of the more than four million Americans under forms of penal supervision other than imprisonment got lucky too. See Lauren E. Glaze & Erika Parks, Correctional Populations in the United States, 2011, NAT’L CRIM. J., Nov. 2012 at 1, 4 tbl. 3 available at, http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus11.pdf (U.S. Dept. of Justice, Bureau of Justice Statistics 2012).

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

105. See 18 U.S.C. § 3553(a) (2006).

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When Congress creates new crimes and increases sentences, it speaks, not of doing justice, but of giving “tools” to prosecutors.106 Consider mandatory minimum sentences like the ones 18 U.S.C.

§ 924(c) provides for drug traffickers carrying firearms:

In a recent case, a twenty-two-year-old defendant was arrested on two occasions for possessing both drugs and a firearm.

Although he had no criminal record before these arrests, his conviction of the second offense required the court to impose a mandatory minimum sentence of twenty-five years, which the offender would be required to serve after he completed his first sentence. When Judge Myron H. Thompson imposed the total sentence of forty years required by section 924..., he called this sentence “draconian.” He noted that not only would the offender’s child grow up without a father but his grandchildren, if he had any, would be teenagers or young adults before he was released.

Judge Thompson and other judges are required to impose the mandatory minimum sentences specified by section 924, but prosecutors have a choice. The [United States] Sentencing Commission reports that, after the exercise of prosecutorial discretion in charging and plea bargaining, only 20% of the offenders who used firearms to commit drug crimes received the mandatory sentences that section 924 prescribes, and offenders who carried firearms without using them received the section 924 enhancements even less often.107

106. The full title of the PROTECT Act is the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003. See Pub. L. No. 108-21, 117 Stat. 650 (2003). The full title of the USA Patriot Act is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. See Pub. L. 107-56, 115 Stat. 272 (2001). Shortly after the Supreme Court narrowly construed a federal statute proscribing schemes to “deprive another of the intangible right to honest services,” see 18 U.S.C. § 1346 (2006), a Senate committee held hearings titled, “Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court’s Skilling Decision.” See Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court’s Skilling Decision: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010). No one in Congress speaks of providing “tools” to defense attorneys.

107. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 STAN. L. REV. 85, 115-16 (2005) (describing Judge Thompson’s opinion in United States v. Washington, 301 F. Supp. 2d 1306 (M.D. Ala. 2004), and some findings reported in UNITED STATES SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINES



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If mandatory minimum sentences reflect Congress’s determination of the punishments offenders deserve, why don’t they bind the officials who determine sentences? Why are they imposed in only one case out of five?

Was Congress unaware that prosecutors effectively determine sentences in 95% of the cases? Or did Congress willingly play the bad cop, threatening the accused with harsh treatment? Did it knowingly invite prosecutors to play the good cop? Did it supply weaponry that it expected to be brandished in every case but fired only rarely?

At the very least, a regime of plea bargaining enables legislators to indulge in vengeful fantasies and political posturing, secure in the knowledge that no one will pay the fiscal and human costs of implementing these fantasies across the board. When a legislature plans from the outset to allow 95% of all offenders to avoid the punishments it prescribes, these punishments do not establish a moral norm.


In 1957, in Shelton v. United States,108 a panel of the Fifth Circuit held plea bargaining unlawful by a vote of two to one. “Justice and liberty are not the subjects of bargaining and barter,” Judge Richard Rives declared.109 The en banc Fifth Circuit set aside the panel ruling by a vote of three to two,110 and the defendant sought review in the Supreme Court.

The Supreme Court did not decide in Shelton whether a guilty plea was involuntary simply because a prosecutor had induced it by promising leniency. The Court would not resolve that question until twelve years later.111 Instead, in 1958, the Solicitor General confessed error on a tangential issue, and the Court accepted his confession.112 The government’s confession of error was peculiar. While referring to all the circumstances of the case, it emphasized that the trial court had failed to conduct an adequate inquiry when it accepted the defendant’s guilty plea. The confession of error, howF.2d 101 (5th Cir.), judgment set aside en banc, 246 F.2d 571 (5th Cir. 1957), rev’d per curiam, 356 U.S. 26 (1958).

109. Id. at 113.

110. Sheldon v. United States, 246 F.2d 571 (5th Cir. 1957), rev’d per curiam, 356 U.S.

26 (1958).

111. See Brady v. United States, 397 U.S. 742 (1970).

112. Shelton v. United States, 356 U.S. 26 (1958).

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ever, failed even to advert to the Fifth Circuit’s ruling on this issue. The Fifth Circuit had held unanimously that an inadequate inquiry would not entitle the defendant to withdraw his plea but would require only a hearing on the plea’s validity.113 Perhaps the Solicitor General did some vote counting, feared that the Supreme Court would forbid plea bargaining, and sought to foreclose such a ruling.114 If the Supreme Court had outlawed plea bargaining in 1958, I do not believe that the sky would have fallen. I also believe the American criminal justice system would look very different today.

I cannot demonstrate that plea bargaining has been at the root of the many evils that have befallen this system since 1958, but one can make a plausible case that it prompted or facilitated most of them. By lowering the price of imposing criminal punishment, plea bargaining gave America more of it.115 Here are a few more thought experiments. If the Supreme Court had outlawed plea bargaining in 1958, would the United States now have as many mandatory minimum sentences, and would they be as harsh? Would it have approved mandatory sentencing guidelines (guidelines the Supreme Court later made advisory)?116 Would it have ended parole?117 Would it have rushed to punish crack cocaine offenses by treating a single gram of this drug as the equivalent of 100 grams of powder?118 Would it have locked up non-violent white-collar first offenders for decades, calSee Shelton, 242 F.2d at 112 (panel opinion); Shelton, 246 F.2d at 572-73 (en banc opinion).

114. The Solicitor General’s confession of error does not appear in most collections of Supreme Court briefs and records. In 1968, however, I located a copy in the Supreme Court library. I told the Shelton story in Alschuler, supra note 10, at 35-37.

115. The prosecutors and judges who produce convictions and sentences in America are usually officials of one set of governments (counties) while prison costs are largely borne by another set of governments (states). Through plea bargaining, courts and prosecutors issue punishment orders cheaply while someone else pays the cost of filling these orders. Far from reducing what taxpayers pay for criminal justice, plea bargaining almost certainly has caused them to pay more.

116. See United States v. Booker, 543 U.S. 220 (2005); cf. United States v. Green, 346 F.

Supp. 2d 259, 270 (D. Mass 2004) (“Enhanced plea bargaining is actually the goal of the [federal sentencing] guidelines.”).

117. Defendants cannot bargain with a parole board. Leaving much of the determination of sentence to a parole board makes it difficult for prosecutors to promise significant sentence reductions to defendants who will be sentenced to prison following their guilty pleas. See GEORGE FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA 186-94 (2003).

118. See William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 30 ARIZ. L. REV. 1233, 1250-56 (1996); David A. Slansky, Cocaine, Race, and Equal Protection, 47 STAN. L. REV. 1283, 1290-98 (1995).

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culating their sentences by counting the dollars their crimes cost119— and possessors of child pornography for a decade or more, calculating their sentences by counting the unlawful images on their computers?120 Would it have taken “real offense sentencing” to the same nonsensical extremes?121 Would it have six-month trials? Would it conduct lengthy hearings on the appropriate phrasing of Miranda warnings and other irrelevancies?122 Would it have approved RICO, the PROTECT Act, the “honest services” statute, and other swaggering tough-on-crime measures?

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