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«CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 430 LAFLER AND FRYE: TWO SMALL BAND-AIDS FOR A FESTERING WOUND Albert W. Alschuler THE LAW ...»

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In a series of articles that began forty-five years ago, I argued that the United States should prohibit plea bargaining123 and that doing so was feasible.124 Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared. If someone were to propose a Tea Party (or Back to Basics) Movement for Criminal Justice, I might still join,125 but I would not give the group more than ten dollars. The time for a crusade to prohibit plea bargaining has passed.126

119. See Peter J. Henning, Sentences Get Harsher in White-Collar Cases, N.Y. TIMES DEALB%K (Apr. 12, 2010), http://dealbook.nytimes.com/2010/04/12/sentences-get-harsherin-white-collar-cases/.

120. See UNITED STATES SENTENCING COMMISSION, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl. 13, available at http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2010/Table13.

pdf (reporting that the average federal sentence for child pornography in fiscal 2010 was 118 months); John Gabriel Woodlee, Note, Congressional Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument for or Against Deference?, 60 DUKE L.J. 1015, 1025-31 (2011); Rachel Aviv, The Science of Sex Abuse: Is it Right to Imprison People for Heinous Crimes They Have Not Yet Committed?, The New Yorker, Jan. 14, 2013, available at http://www.newyorker.com/reporting/2013/01/14/130114fa_fact_aviv?currentPage=1.

121. See Alschuler, supra note 107, at 94-95 (noting that federal courts now sentence low-level drug dealers on the basis of the weight of all the drugs possessed by all the member of their drug organizations and even on the basis of drugs these dealers were acquitted of possessing).

122. See Charles D. Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519 (2008).

123. See the articles cited in notes 29, 40, 50, 76 & 78 supra.

124. See Alschuler, supra note 83.

125. I say that as someone who is appalled by the actual Tea Party’s influence on American politics.

126. As late as 1965, a federal court of appeals declared, “It is clear, of course, that a plea of guilty induced by a promise of lenient treatment is an involuntary plea and hence void.” Scott v. United States, 349 F.2d 641, 643 (6th Cir. 1965). The proposition asserted by the court was far from clear in 1965, but the fact that a court could make this confident pronouncement reveals how different the world is now. As late as 1973, a federal crime commission proposed abolishing plea bargaining “as soon as possible, but not later than

1978.” NATIONAL ADVISORY COMMITTEE ON CRIMINAL JUSTICE STANDARDS AND GOALS, A

NATIONAL STRATEGY TO REDUCE CRIME 98 (1973).

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

Summer 2013 Two Band-Aids 707

Instead, the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. Their principal mission today should be to make it less awful. Improving the plea bargaining process should be one of their goals. The decisions in Lafler and Frye take a tiny step in that direction, and the articles published in this symposium point to larger steps—recording plea offers, amending the rules that prohibit judges from participating in plea negotiation, and ensuring that Brady disclosures and other discovery occur at the time the process begins or at least before it ends.127 Beyond improving the plea bargaining process, scholars should ask of every proposed reform whether approving it would make trials more or less available. They should seek ways to simplify trial, pretrial, and post-trial procedures. They should resist overcriminalization (especially the expansion of federal criminal law).

They should oppose severe punishments. They should support greater funding for indigent defense and seek more effective ways of supplying it.128 They should embrace Professor Bibas’s proposal for sentencing juries empowered to accept or reject plea agreements.129 They should cheer most measures that would reduce the bargaining leverage of prosecutors while booing most measures that would enhance it. Most of all, they should not allow what is familiar to become what is right.

127. See Susan R. Klein, Monitoring the Plea Process, 51 DUQ. L. REV. 559 (2013); Russell D. Covey, Plea Bargaining after Lafler and Frye, 51 DUQ. L. REV. 595 (2013).

128. See Stephen B. Bright & Sia M. Sanneh, Fifty Years of Defiance and Resistance after Gideon v. Wainwright, 122 YALE L.J. (forthcoming 2013).

129. See BIBAS, supra note 41, at 156-64.

Readers with comments may address them to:

–  –  –

For a listing of papers 1–400 please go to http://www.law.uchicago.edu/publications/papers/publiclaw.

Gary Becker, François Ewald, and Bernard Harcourt, “Becker on Ewald on Foucault on 401.

Becker” American Neoliberalism and Michel Foucauilt’s 1979 Birth of Biopolitics Lectures, September 2012

402. M. Todd Henderson, Voice versus Exit in Health Care Policy, October 2012 Aziz Z. Huq, Enforcing (but Not Defending) “Unconstitutional” Laws, October 2012 403.

404. Lee Anne Fennell, Resource Access Costs, October 2012

405. Brian Leiter, Legal Realisms, Old and New, October 2012

406. Tom Ginsburg, Daniel Lnasberg-Rodriguez, and Mila Versteeg, When to Overthrow Your Government: The Right to Resist in the World’s Constitutions, November 2012

407. Brian Leiter and Alex Langlinais, The Methodology of Legal Philosophy, November Alison L. LaCroix, The Lawyer’s Library in the Early American Republic, November 408.

409. Alison L. LaCroix, Eavesdropping on the Vox Populi, November 2012 Alison L. LaCroix, On Being “Bound Thereby,” November 2012 410.

411. Alison L. LaCroix, What If Madison had Won? Imagining a Constitution World of Legislative Supremacy, November 2012

412. Jonathan S. Masur and Eric A. Posner, Unemployment and Regulatory Policy, December

413. Alison LaCroix, Historical Gloss: A Primer, January 2013

414. Jennifer Nou, Agency Self-Insulation under Presidential Review, January 2013

415. Aziz Z. Huq, Removal as a Political Question, February 2013

416. Adam B. Cox and Thomas J. Miles, Policing Immigration, February 2013

417. Anup Malani and Jonathan S. Masur, Raising the Stakes in Patent Cases, February 2013

418. Ariel Porat and Lior Strahilevits, Personalizing Default Rules and Disclosure with Big Data, February 2013

419. Douglas G. Baird and Anthony J. Casey, Bankruptcy Step Zero, February 2013

420. Alison L. LaCroix, The Interbellum Constitution and the Spending Power, March 2013

421. Lior Jacob Strahilevitz, Toward a Positive Theory of Privacy Law, March 2013

422. Eric A. Posner and Adrian Vermeule, Inside or Outside the System? March 2013

423. Nicholas G. Stephanopoulos, The Consequences of Consequentialist Criteria, March

424. Aziz Z. Huq, The Social Production of National Security, March 2013

425. Aziz Z. Huq, Federalism, Liberty, and Risk in NIFB v. Sebelius, April 2013

426. Lee Anne Fennell, Property in Housing, April 2013

427. Lee Anne Fennell, Crowdsourcing Land Use, April 2013

428. William H. J. Hubbard, An Empiritcal Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts, May 2013

429. Daniel Abebe and Aziz Z. Huq, Foreign Affairs Federalism: A Revisionist Approach, May 2013

430. Albert W. Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering Wound,

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