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Plea Bargaining's Triumph: A Histosry of Plea Bargaining in America.

PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA. By George Fisher. Stanford, CA: Stanford University Press, 2003.
INTRODUCTION
I. PLEA BARGAINING'S TRIUMPH
II. THE LIMITS OF FISHER'S APPROACH
III. APPLYING FISHER'S INSIGHTS IN A POST-BLAKELY, POST-BOOKER WORLD


INTRODUCTION

The reality of modern-day criminal trials is that they are almost as rare as the spotted owl. While the idea of the adversarial trial, and in particular the idea of trial by jury, remains an iconic aspect of the American legal system, the sheer fact is that criminal jury trials, if not truly on the endangered species list, are nonetheless becoming ever less common with each passing year. In theory, trial by jury remains a cornerstone of our system of justice: fans of the jury system emphasize its capacity to check the tyranny of the state, the legitimacy that comes from a popular restraint on the administration of punishment, and of course the Tocquevillian notion that "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well." (1) And, to be sure, the public continues to hear a great deal about criminal trials, or, more precisely, about a relatively small handful of sordid and sensational ones. With Court TV's gavel-to-gavel coverage and the enormous press attention devoted to a handful of high-profile (and of course highly atypical) criminal cases like that of O.J. Simpson or, most recently, Scott Peterson, the criminal trial has itself become a form of infotainment. These media spectacles, however, while perhaps helping the criminal jury trial to retain a powerful hold over our shared cultural imagination, bear almost no practical relation to the actual criminal processes faced by most of those accused of a crime.

In actual practice, the vast majority of criminal defendants waive their right to a trial and instead agree to a plea bargain. The proportion of criminal cases dispensed with through plea agreements is staggering. As Robert Scott and Bill Stuntz wrote some years ago, plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (2) Nor is this rhetorical grandstanding; statistics bear out such a stark pronouncement. In 2002, for example, if we look at adjudicated federal criminal cases, 3463 federal criminal defendants went to trial, while 72,110 entered pleas of guilty or nolo contendere--meaning that less than 5% of federal criminal defendants went to trial. (3) Of the 95.4% of those that chose a plea, the vast majority were no doubt the result of plea bargains--negotiated agreements with the prosecutor about charge and punishment in which the defendant agreed to plead guilty in exchange for a reduction in punishment. Plea bargains have become the norm and the trial an anomaly.

In Plea Bargaining's Triumph: A History of Plea Bargaining in America, George Fisher offers an impressively researched and fascinating account of how plea bargaining was transformed over the course of the nineteenth century from a "tiny beachhead" of little general importance to "the dominant force in criminal procedure" (p. 230). Over the course of the century, plea bargaining came to be in the interest of prosecutors and judges alike, and once the principal institutional players shared an interest in facilitating deals, plea bargains quickly became both prevalent and entrenched. At the most basic level, Fisher's argument is that when parties have both the incentive and power to bargain, they will, almost inevitably, bargain.

At some risk of oversimplification, four central claims can be drawn from Fisher's rich and careful narrative. First, Fisher's historical investigations show that prosecutors will tend to bargain whenever they have the power to do so. Plea bargains, Fisher maintains, are "an almost primordial instinct of the prosecutorial soul" (p. 23). They provide a guaranteed conviction for the prosecutor, thereby enhancing his "win" rate, and they are far less time-consuming and resource-intensive than a trial. In the early nineteenth century, prosecutors often combined their responsibilities with other forms of lawyering, and for such part-time prosecutors, quick guilty pleas provided more time for the rest of their (paying) clientele. Even for full-time prosecutors, caseload pressures--or even just a taste for leisure or a preference for anything apart from work--made guilty pleas a satisfying alternative to trial, so long as the defendant could be persuaded to accept terms that still provided adequate punishment from the prosecutorial perspective.

Second, Fisher emphasizes that to create incentives for defendants to plead guilty, prosecutors must have the power to offer a carrot, a stick, or both. They need to be able credibly to establish that a plea will result in a better outcome for the defendant than he could realistically expect from going to trial. The prosecutor must therefore have a relatively high degree of control over, or at least clear knowledge of, the likely sentence that would result from trial. Until judges became willing partners in plea bargaining in the last quarter of the nineteenth century, indeterminate sentencing schemes or substantial judicial discretion severely limited a prosecutor's plea bargaining power. The greater a judge's sentencing discretion, the more uncertainty about what punishment would actually result from conviction; this greater uncertainty made it difficult to "price" a conviction with any confidence. Thus bargains flourished only in limited nooks and crannies of the system, until judges' civil caseload pressures shifted their attitudes about the merits of negotiated pleas.

The third central argument is that once bargains took hold within our criminal justice system, only those institutions and devices that proved compatible with plea bargaining have survived and flourished; Fisher provides examples such as probation and the public defender. Even those procedural devices that might have conceivably limited or slowed the advance of plea bargaining--the bench trial or the rule of evidence restricting the use of prior convictions to impeach a testifying criminal defendant--developed in ways that in fact stanched its advance only slightly, if at all.

Finally, though plea bargaining is sufficiently well entrenched at this point as to be practically unstoppable, this does not mean that all approaches to plea bargaining are created equal. In the final chapter of the book, Fisher's generally descriptive history takes a more normative turn, and he suggests that plea bargaining will be fairest to defendants when there is an appropriate "balance of power" between judge and prosecutor, so that each may operate as a check on unreasonably severe sentences even for those defendants who plead. The Federal Sentencing Guidelines, in Fisher's view, have shifted this balance of power too decisively to prosecutors as opposed to judges, and this new equilibrium may have contributed to pushing the rate of plea bargains still higher in recent years.

As this thumbnail sketch of the book's central arguments suggests, Fisher's explanations focus on the institutional dynamics that made plea bargaining an increasingly attractive alternative for all of the principal players in the criminal justice system--primarily prosecutors and judges, but also defense counsel and even defendants themselves. (4) He looks to explain the rise of plea bargaining through mechanisms internal to the criminal justice system, emphasizing conditions such as caseload pressures, evidence rules, and the structure of sentencing rather than any broader social forces or cultural dynamics. And for the most part, Fisher assumes that all parties within the criminal justice system are rational actors, making reasonable and reasoned choices from whatever institutional perspective they occupy. This internalist and incentive-oriented approach is, for the most part, strikingly effective, adding up to a highly focused and extremely plausible account of plea bargaining's increasing importance. But the book's strengths turn out also to be its weaknesses, for Fisher sometimes pushes both the rational-actor approach and the internalist explanations to the exclusion of alternatives.

Overall, however, Fisher's story is both compelling and important, and especially so fight now. It is, in fact, a particularly salient moment in which to ponder the lessons of the history of plea bargaining: last Term, in Blakely v. Washington, (5) the Supreme Court ruled a portion of Washington State's sentencing scheme unconstitutional, throwing into doubt the status of the Federal Sentencing Guidelines as well as many similar state approaches. And after expedited review this Term, the Court indeed ruled portions of the Federal Sentencing Guidelines unconstitutional in United States v. Booker. (6)

The concern animating both Blakely and Booker was whether, in some circumstances, judicial factfinding may violate a defendant's Sixth Amendment right to trial by jury. The majority in both cases found it to be unconstitutional for a judge to be bound by sentencing provisions that require an increased sentence as a result of facts found by the judge but not proven to a jury beyond a reasonable doubt. (7) The majority coalition that fashioned a remedy in Booker--a different group of Justices than the majority in the case who found mandatory sentencing enhancements under the Guidelines unconstitutional--severed from the Guidelines the provision that made the application of the scheme binding upon judges. Essentially, the Court transformed a mandatory sentencing system into a discretionary one; though judges must still consider the Guidelines when determining sentences, they are no longer obliged to follow them. Whether returning to a more discretionary system is either desirable or constitutionally required is quite contestable; indeed, in Booker, three Justices (Stevens, Scalia, and Thomas), all of whom supported the portion of the opinion that found the Guidelines as practiced unconstitutional, disagreed with the legitimacy of the majority's remedy and would instead have maintained mandatory sentencing except in those limited cases in which enhancements created a Sixth Amendment problem. More generally, lower federal courts are now wrestling with how to apply Booker (and, in state courts, Blakely), and whether and how Congress will respond to Booker remains quite an open question. What is clear is that, together, Blakely and Booker have provoked a watershed moment for the consideration of sentencing policy. Whatever happens next, the Guidelines will no longer be able to operate in their previous manner.

A historically minded understanding of the dynamics of plea bargaining, and a recognition of the inexorable interconnections among sentencing schemes, prosecutorial charging power, and parties' strategic choices, may quite usefully inform the current debate about the future approach to sentencing in the wake of Blakely and Booker. In this Review, Part I analyzes the strengths of Fisher's analysis, while Part II outlines several limitations to his approach. Finally, Part III ponders how Fisher's insights apply in a post-Blakely, post-Booker world.

I. PLEA BARGAINING'S TRIUMPH

Fisher's story begins in the early nineteenth century, in Massachusetts; his prodigious research focuses on Middlesex County. In 1809, Samuel Dana, the first Middlesex County attorney, brought a four-count indictment against Nathan Corey, charging him with being a "common seller of alcohol" and with three counts of making unlicensed alcohol sales (p. 22). In exchange for a plea of no contest, Dana dropped three of the four charges, and Corey paid a fine and court costs on the remaining charge. This was one of the earliest examples Fisher found of a "clear plea bargain" (p. 22), an overt agreement between prosecutor and defendant to reduce the penalty in exchange for a plea. In Fisher's close examination of the middle-tier courts of Middlesex County, he found that between 1787 and 1849, clear bargains of this sort were rare, but when they did occur, nearly two-thirds of them took place in liquor cases. Why? Liquor cases in this period were unusual in that the penalty structure was carefully prescribed: anyone convicted of being a "common seller of alcohol" had to pay a twenty-pound fine, and individual sales called for a payment between two and six pounds, as well as whatever costs were assessed by the prosecutor (p. 24).

Unlike most other criminal matters, in which the judge had enormous sentencing discretion regarding both the amount of fine and length of imprisonment, (8) these liquor statutes left judges with little choice about what sentence to impose upon either a conviction or a guilty plea. It was precisely this lack of judicial sentencing discretion that created for prosecutors the opportunity to deal. Because the charges themselves determined the punishment, prosecutors could manipulate the charges to produce their desired result. Specifically, a prosecutor could overcharge and then drop some of the most serious charges in exchange for a guilty plea. Since the sentences were determinate, a defendant could know with precision what punishment he risked if he were convicted at trial of the charges in their entirety and could also know with confidence what punishment would be exacted if he agreed to the prosecutor's terms.

At first, such bargains were rare, even in liquor cases (p. 25). But as caseloads increased, Middlesex prosecutors began to make greater use of the technique; by the 1830s, for example, Asahel Huntington was using preprinted, multicount indictment forms for his liquor prosecutions, suggesting that the multicount indictment and a subsequent nolle prosequi (nol pros) of several charges in exchange for a plea were becoming increasingly routine. When the legislature discovered what Huntington was doing and investigated him in 1844 for making such bargains--that is, for seemingly taking in less revenue and holding fewer trials than it appeared that he should have--he gave the legislators a lesson in the merits of his approach and successfully persuaded them that his tremendous workload made the arrangement both necessary and appropriate. By 1849, the county attorney used multicount indictments in 89% of liquor cases and, even using a conservative definition of what counts as a plea bargain that quite possibly understates the actual proportion, Fisher finds that at least 35% of liquor cases that year were resolved through clear plea bargains (p. 32).

However, in 1852, the Massachusetts legislature removed the prosecution's power to nol pros without the judge's consent. This eliminated the prosecution's key leverage over defendants in liquor cases: the power to charge and then drop some charges in exchange for a plea. Sure enough, the number of clear plea bargains dropped dramatically, and the number of trials increased concomitantly. Between 1853 and 1910, only 4 of the 602 liquor cases Fisher examined in Middlesex County resulted in the kind of clear plea bargain that had been steadily growing in popularity until this legislative change (p. 52).

However, clever prosecutors, faced with ever-growing workloads, managed to find alternative procedural devices to replace the nol pros. Essentially, late in the 1840s, prosecutors invented the possibility of placing a case "on file," a device that amounted to an early form of "probation by another name" (p. 84). For offenses of low to moderate seriousness, the prosecutor would, after a guilty plea had been recorded, place the case "on file," meaning that it was indefinitely postponed and sentence was never issued. It seems that in Massachusetts in this period, the judge could pass sentence only upon motion by the prosecutor, so by placing the case on file, the prosecutor stayed the judge's sentencing power (pp. 74-75). But the prosecutor could move for a sentence at any time in the future, so defendants whose cases were on file were, essentially, on probation. If they repeated their offense, or otherwise misbehaved, they would be called to account and required to serve the sentence for their original misdeed. Moreover, friends of the defendant had to become sureties who would forfeit a significant sum if the defendant failed to appear before the court when called.

With the nol pros disallowed (unless judges gave their consent, which apparently they were generally unwilling to do), the on-file system thrived as an alternative device by which prosecutors could give defendants an incentive to opt out of trials. Tracing the details of this transmutation from charge bargaining to probation is one of the most fascinating parts of Fisher's book, for he succeeds here in showing precisely how prosecutors made the most of whatever devices were available to them to cut deals when they could. Looking at the early history of plea bargaining leads to two general conclusions: First, that bargaining is like a garden weed--malleable, organic, and exceedingly hard to eradicate. Even when its roots are chopped down, it manages to grow back elsewhere, wherever and whenever the most basic conditions for its survival are present. Second, at the same time, Fisher shows that the institutional design does matter: hardy and resilient though bargaining may be, its particular shape responds directly to the details of institutional arrangements. We will return to this point below, when we look at how Fisher's historical account can inform our understanding of sentencing dynamics since Blakely and Booker.

Until judges became willing participants in plea bargains, the only serious offenses for which Fisher finds evidence of clear bargains are murder cases. Here, on occasion, prosecutors used their power to partially nol pros--they could reduce the charge from murder to manslaughter, and therefore reduce the penalty from a mandatory death sentence to a prison term of zero to twenty years (p. 34). But the range of punishment for manslaughter was both too broad and insufficiently severe for prosecutors to offer it frequently as an alternative to a full-fledged murder charge. When the legislature created degrees of murder in 1858, the frequency of charge bargaining rapidly increased. This development offered prosecutors a new weapon in their plea bargaining arsenal: the power to reduce a first degree murder charge, with its automatic death sentence upon conviction, to a second degree charge, which would result in a mandatory sentence of life in prison. As with liquor prosecutions prior to 1852, it was precisely the lack of judicial discretion about penalty that provided prosecutors with the power to deal. While the likelihood of a conviction might be uncertain and variable--depending on the evidence, the prosecutor's talent, and so forth--the expected value of a conviction was a sure thing, so the defendant could understand clearly the reduction in punishment that would result from accepting a bargain. Determinate sentences thus constrained judges and thereby facilitated deals: if the defendant risked trial and was convicted, he could not hope for the judge's leniency, and if he accepted the deal, he did not face the risk of a sentence steeper than that bargained for because the charge determined the sentence. Charge bargaining of this sort thus left even those judges who might disapprove of dealmaking without the power to prevent it.

Gradually, however, judges became full-fledged partners in plea bargaining. Fisher's innovation is to recast one of the traditional explanations for why judges increasingly supported pleas. Some of the earliest analysts of the rise of plea bargaining, such as Justin Miller in 1927, emphasized that plea bargaining had dramatically increased because of the increasing caseload pressure on courts and prosecutors alike. (9) Fisher largely buys the caseload-pressure explanation, but he emphasizes that it was the dramatically increasing civil caseloads that prompted courts to embrace deals. Between 1880 and 1900, the quantity of civil suits filed in Boston increased dramatically, from 120 to about 3300 (p. 123). But courts had more power to coerce criminal plea bargains than they did civil settlements, so "overworked judges of the last quarter of the century turned to plea bargaining for relief from their out-of-control civil caseloads" (p. 123). The increasing need for some mechanism to reduce workload was abetted by the rise of the probation officer, who could offer the judge a relatively impartial assessment of the defendant to help him assess the facts of the case and the character of the defendant even without the benefit of a trial. Practically speaking, the dominant way that judges assisted with plea bargaining was simply to acquiesce to the sentencing recommendation of the parties. Once such acquiescence became routine and predictable, it had the benefit of encouraging the defendant to strike a deal while avoiding the need to put the judge in the unseemly position of overtly haggling over terms (pp. 131-33). Although Fisher presents his explanation for judicial acquiescence in a plea bargain-dominated regime as somewhat at odds with John Langbein's explanation for the same phenomenon, (10) which focuses on increasing evidentiary complexity and trial length, it seems entirely plausible that civil caseload pressure and the changing nature of trials themselves could have combined to prompt judicial acceptance of plea bargains.

Fisher's account also reveals how certain evidentiary changes had the probably unintended consequence of further entrenching plea bargains. In 1866, Massachusetts began to allow criminal defendants to testify under oath in their own trials, making it the third state to permit such testimony. While this change was linked to much broader eliminations of competency restrictions, (11) it ended up creating quite literal prisoners' dilemmas for defendants, especially for those who had a rap sheet. If the defendant chose not to testify, it was highly probable that the jury would draw a negative inference from this refusal, notwithstanding jury instructions declaring that no such inference should be drawn. But if the defendant did testify, then because he was a witness, he was subject to the full panoply of cross-examination techniques, including impeachment for lack of credibility because of a prior criminal record.

So if the defendant testified, his prior crimes would be introduced against him; if he stayed silent, his failure to testify would likely be taken as evidence of guilt. Either way, defendants were worse off than they were before they had the so-called right to testify, and they were now worse off at trial, which probably increased the chances that they would accept a plea. The plea-encouraging dynamic of these testimonial changes was further enhanced when judges began to give especially stiff sentences to those defendants who had testified but were nonetheless convicted, as on top of whatever crime they had presumably committed, they were taken to be perjurers to boot. This meant that all defendants, recidivists or not, now faced a genuine bind: "All defendants risked being convicted for their silence, and when tried before judges intent on penalizing them for their perjury, all defendants risked being punished for their speech" (p. 108).

II. THE LIMITS OF FISHER'S APPROACH

While Fisher's research focuses on the midlevel courts of Middlesex County, he also looks closely at others' empirical work on criminal justice to test his assumptions that institutional interests and the power to enforce bargains are the keys to understanding plea bargaining's rise elsewhere as well. And indeed, Fisher's story has enormous explanatory power. Examining how plea bargaining fits into the particulars of various institutional designs permits us to witness the extent to which prosecutors--and later, judges--used any available tools in order to facilitate deals. It also powerfully reveals how those institutional mechanisms that facilitated bargains thrived. Fisher gets a great deal of purchase from his focus on legal institutions and procedures, and he is quite persuasive in suggesting that these internal legal dynamics are a central--indeed, the central--place to look in figuring out how plea bargaining came to dominate the criminal justice system. His book is therefore a genuine and enormously significant contribution to unpacking the history of this now-so-familiar and ever-so-dominant alternative to criminal trials.

That said, Fisher's almost exclusive focus on the internal aspects of legal procedures is sometimes too stark and univocal. In the early chapters, Fisher's depiction of how prosecutors used those procedural powers that they possessed--nol pros to generate charge bargaining in liquor and murder cases, and their exclusive power to make a motion to sentence to create the "on file" probationary mechanism--is highly persuasive, and his ability to uncover these explanations from the extant records is downright ingenious. But even here, the history that he tells invites a set of institutional questions one step beyond those that he addresses. For example, with liquor cases, why did the Massachusetts legislature, which was apparently quite taken with Asahel Huntington's explanation of charge bargaining in 1844, decide in 1852 to outlaw the prosecutor's authority to nol pros? While Fisher traces out the consequences of this legislative change--in particular the way that it squelched bargaining in liquor cases but buttressed the then-fledgling on-file system of probation--he does not even attempt to explain what motivated the legislature to modify the prosecutor's powers. Nor does he explore why the legislature created "degrees" of murder in 1858; while this change enhanced prosecutorial negotiating power in murder cases, it was surely a legislative innovation that came about for reasons unlinked to the increased impetus it ended up providing to plea bargaining. But what exactly were these reasons? Was there any intended relationship at all between the purposes for which the statute was passed and its consequences? Or was the intended purpose in any conflict with its actual result?

These are two examples of a broader phenomenon: one level behind the book's focus is a set of legislative and procedural changes that seem, from the perspective of Fisher's text, to arise practically out of nowhere. These include the decision to permit defendants to testify on their own behalf, which subjected them to cross-examination (and, though unmentioned by Fisher, the concomitant but distinct decision to prohibit defendants from making unsworn statements once they were deemed competent to testify); the creation of probation officers; the increasing representation of criminal defendants by counsel; the genesis of the Federal Sentencing Guidelines; and so forth. While Fisher does an impressive job of tracing out the effects of each of these changes on the dynamics of plea bargaining, he generally eschews any discussion of what motivated these changes themselves.

At one level, this criticism may be unfair--after all, one can always move a level up in terms of categories of description and explanation, and no book can do everything. But even from within Fisher's institutional focus, ignoring these issues leaves the reader with important and lingering questions. Did any of these procedural and legislative changes arise out of concerns about the specific dynamics of the process of criminal prosecution? If so, to what extent were they efforts to thwart or enhance plea bargains, and to what extent was their effect on plea bargains the mere result of wholly unintended consequences? Fisher tells us in his prologue that "[t]o the extent that external actors, especially legislators, played a conscious role in the [plea bargaining] struggle, they mainly took sides with the ultimately defeated jury trial" (p. 2). But if this assertion is right--and we get only the barest of glimpses into this issue within the book itself--why was the Massachusetts legislature so dramatically ineffective in stamping out plea bargaining? Why didn't the legislature, for example, in response to the on-file mechanism, create a procedural rule that permitted judges to sentence upon their own authority, even without a motion by the prosecutor? Or why didn't it continue to permit defendants to offer unsworn statements even once they were permitted to testify, in order to prevent defendants from choosing between silence that would surely be held against them and testimony that might, if they were convicted, convince the judge that they had perjured themselves and thereby increase their sentence?

Similarly, Fisher treats the prosecutors, and largely the judges as well, as reactive responders to external conditions not of their making. Yet one wonders to what extent these players lobbied for institutional changes that reflected whatever they felt was in their interest. A still fuller account of the rise of plea bargaining would explore more carefully the root causes of the legislative and procedural transformations that affected plea bargaining.

In addition, Fisher's near-exclusive focus on the internal institutional details that led plea bargaining to flourish leads him to ignore the extent to which broader social and cultural phenomena might also shed light on plea bargaining's history and the degree to which plea bargaining's rise, even if the direct consequence of the interests of legal participants, might itself have an effect on ideology or worldviews. Let me be clear: I am, in fact, quite persuaded of the significant explanatory value of Fisher's account. And he persuasively debunks certain alternative accounts, especially, for example, the claim that plea bargaining's success was due to substantial public support for the phenomenon in the early part of the twentieth century. (12) Yet one wonders if his account could not be usefully supplemented by a look to broader social dynamics and their institutional and ideological consequences as well. Fisher explicitly rejects such an approach: "This is not a social history of plea bargaining's rise.... Plea bargaining's triumph was manifestly the work of those courtroom actors who stood to gain from it" (p. 2). "[W]hile any study of so broad a phenomenon as plea bargaining must attend to the larger social setting," he writes, "we are unlikely to find the root causes of so court-focused a practice anywhere outside the courtroom" (p. 11). But even if Fisher is right about the likely locations of "root causes," cultural attitudes, ways of thought, and ideas may themselves affect how institutional players think; what they deem possible, imaginable, or desirable; what seems obvious; and what seems contestable. While Fisher's privileging of institutional history serves him well, his near-total rejection of both social and intellectual history does not.

To put it differently, Fisher's explanations stay extraordinarily close to the ground. If the choice were actually between such a close parsing of the empirical evidence of plea behavior and broader, less grounded speculations about larger causes, Fisher makes the right call. But it need not be either/or: it would, I think, be possible to link Fisher's findings to a set of broader phenomena that might also have contributed to the increasing significance of plea negotiations as a method for disposing with criminal charges.

To give just a few examples: First, how did plea bargaining fit into changing ideas about punishment and responsibility for criminal behavior? For example, did biological theories of criminality that began to gain influence in the 1870s and 1880s, such as those associated with the Italian criminologist Cesare Lombroso, (13) have any effect on how prosecutors and judges understood the morality of plea bargains? If criminality were taken to be incurable and inheritable, and criminals themselves understood as a distinct physical type-perhaps even identifiable by what Lombroso called "stigmata," atavistic physical features (extra digits, fleshy lips, protruding ears, and the like) that suggested that they were throwbacks to an earlier evolutionary stage of human development--then granting sentencing concessions to such "born criminals" might be viewed as morally problematic, even by the institutional players whose narrow interests were served by such negotiating. By contrast, as Progressive Era ideas of the therapeutic possibilities for treating and reforming criminals gained sway, perhaps plea bargaining, and the exchange of a reduced punishment for an admission of guilt, came to be seen as an attractive way both to identify and to reward precisely those criminals whose remorse made treatment and reform most plausible.

Or how, if at all, did changing ideas about religion affect criminal defendants' willingness to plead? One of the surprising findings Fisher offers is the high rate of pleas made throughout the nineteenth century by defendants who received no apparent concession (pp. 53, 54, 101). Without quite saying so explicitly, Fisher suggests that, at present, a much higher proportion of defendants' pleas are tied to an explicit bargain. While the institutional transformations discussed by Fisher (ranging from defendants' increasing rates of legal representation to the rise of the Federal Sentencing Guidelines) are no doubt a good part of the explanation, shifting attitudes about responsibility, religion, and the spiritual consequences of confession might also have had some influence on defendants' decisions about whether to admit guilt in lieu of a trial. A repentant and religiously observant criminal defendant--assuming that such a character is not inherently an oxymoron--might be far more likely to plead without any concession than one without an eye to the afterlife.

In addition, the rise of plea bargaining coincides with enormous economic transformations in the United States--urbanization, capitalism, and the increasing dominance of the market economy. (14) Is it really possible that this array of social and cultural transformations had no effects on the social meanings or understandings of the proper methods for adjudicating guilt and allocating punishment? Or, to frame the question in narrower and more legal terms, how, if at all, did emerging ideas about the freedom to contract affect judicial attitudes about plea bargains? Could the growing importance of contract-based conceptions of social arrangements and human relationships have made the idea of plea bargains more palatable to judges? (15) While industrialization does play a role in Fisher's explanatory framework--in that it led to increased civil caseloads, which in turn, motivated judges to make their peace with plea bargaining in order to reduce their mounting caseload pressures--the changing constellations of ideas that resulted from these material transformations are otherwise invisible in Fisher's account.

All of these possible explanations are, admittedly, both speculative and untethered to any empirical foundation. They could well all be wrong. But they do suggest the possibility of a still richer account of plea bargaining, one that would maintain Fisher's sharp focus on institutions and the interests of repeat players and yet allow some space for ideas, shared attitudes, and intellectual developments as social forces.

Fisher largely takes a rational-actor approach to his examination of plea bargaining's history; that is to say, his mode of explanation focuses primarily on the incentives motivating the different institutional participants, as well as their power to bring their interests to fruition. His clear emphasis is on "[w]ho stood to gain from plea bargaining, and [whether] those actors [had] the power to make it happen" (p. 154). This quasi-law-and-economics approach is, in general, highly useful. Fisher's careful look at the extent and the dimensions of prosecutorial power to enforce bargains, and his detailed explication of how this power changed and expanded over time, is extremely productive, and offers a valuable corrective to much of the prior scholarship, which simply assumed that prosecutors had the power to bargain.

But in places, this focus on power and interests does not seem able to fully explain even Fisher's own data. The most striking example of the place where his incentive-based worldview breaks down is the aforementioned astonishing evidence Fisher offers about how frequently nineteenth-century defendants pied guilty even without any sentencing concession whatever. From 1789 to 1829, Fisher found that between 48% and 72% of defendants in nonliquor cases consented to a plea of guilty or no contest (p. 53). Later, too, significant numbers of defendants pied even without any promise of a sentence reduction. Between 1844 and 1900, between 30% and 53% of unrepresented defendants, and between 12% and 47% of those with attorneys, pied even without any apparent concession (p. 101). And at least for the earlier period, Fisher grants that those defendants who pied guilty seem to have received about the same punishment that they would have received if they'd gone to trial and been convicted (pp. 54-55).

This data, then, poses something of a puzzle: with neither an explicit concession nor any rational basis for believing that pleading guilty would reduce the expected sanction, why did significant numbers of criminal defendants nonetheless plead guilty? Fisher's explanations are somewhat unconvincing: he posits that these pleas may have been "gestures of remorse or hopelessness or unsecured bids for judicial mercy" (p. 154), or that the higher rates of pleading among those without counsel may have stemmed from the "hopeless realization that without lawyers, they had small chance of prevailing at trial" (p. 111).

These suggestions raise as many questions as they answer. First, the rate of guilty pleas without concessions even among represented criminal defendants appears substantial--clearly, for the 12% to 47% of defendants with attorneys who nonetheless pied, the absence of counsel cannot be the explanation. More fundamentally, Fisher shows that in the second half of the century (he does not provide earlier data on this point), between 8% and 43% of those defendants without counsel who went to trial in fact won acquittals or hung juries (p. 99). While both of these numbers may be outliers--in half of the years Fisher studied, the nonconviction rate was between 15% and 25% (p. 99)--it is clear that acquittals and hung juries were not exceedingly rare events. If, as Fisher suggests, judges in this period were not inclined to reduce sentences for defendants who pied guilty, and if the chance of an acquittal or hung jury was significantly greater than zero, then wouldn't we expect a self-interested defendant to take his chances on trial rather than pleading without a bargain?

To be sure, one can posit several possible answers. It does seem plausible to imagine that defendants, especially unrepresented defendants, were subject to significant information deficits. Perhaps defendants mistakenly believed that pleading guilty would reduce their sentences. Lacking the aggregate data that Fisher has compiled, they may have been unrealistically optimistic about the sentencing benefit they would get from a guilty plea. Or perhaps they were bluffed by prosecutors into believing that they had no hope of winning at trial--although, once again, Fisher's data suggests otherwise. Or perhaps concessions were actually more frequent than Fisher's direct evidence suggests; the limited available records may simply fail to reveal implicit but well-understood concessions that were, in fact, offered to defendants to encourage pleas. Fisher attempts to explain away the high rate of pleas even without bargains by reference to defendants' frequent feelings of hopelessness, or even shame. He suggests that defendants were so dispirited that they were spurred to plead guilty even without a clear benefit. Perhaps this is right, but this explanation, affective and emotional rather than rational, is in some tension with Fisher's general assumption of self-interested behavior by the rest of the parties.

This data about the surprisingly high rate of pleas even without apparent concession deserves our attention for an additional, and fascinating, reason. The structure of Fisher's book traces plea bargaining from certain particular niches and minor enclaves of the criminal law--in particular, liquor cases and murder--into the dominant force that it has become today. But focusing on the frequency with which defendants plead even without bargains invites us to recognize that we appear never, in fact, to have had a criminal justice system in which trials were the primary mechanism for adjudication. While plea bargaining may have triumphed in the twentieth century, guilty pleas outnumbered trials even in the early days of the republic. This recognition also invites us to ask how many pleas, at the present time, might in fact be made even without explicit or implicit concession. (16) While there is no reason to doubt the conventional wisdom that presumes most pleas to be bargains, in the sense that they offer a discounted punishment compared with the expected sanction if the defendant faced trial and conviction, it is interesting to speculate about whether some proportion of defendants might plead even without an assurance of a reduced punishment, and if so, why.

III. APPLYING FISHER'S INSIGHTS IN A POST-BLAKELY, POST-BOOKER WORLD

In the summer of 2004, about one year after the publication of Fisher's book, the Supreme Court decided Blakely v. Washington. (17) This case found that a state court judge's sentencing enhancement, based on facts neither admitted by the defendant nor proved to a jury beyond a reasonable doubt, violated the defendant's Sixth Amendment right to a trial by jury. (18) Washington's statute permitted a trial judge to consider, when sentencing a defendant, certain "aggravating" factors that could increase punishment, even though such factors had not been found by a jury. (19) Blakely found this allocation of sentencing authority to be unconstitutional. To say the least, the Blakely opinion raised significant doubts about the constitutionality of the Federal Sentencing Guidelines, and indeed, in January 2005, the Supreme Court decided United States v. Booker, (20) striking down portions of the Guidelines.

It is fair to say that Blakely and Booker have been taken by many commentators to signal an enormous sea change for sentencing policy, perhaps even a revolution. (21) But here, Fisher's historical work may yield some significant contemporary purchase. Indeed, Fisher's long view supports several insights. First, it suggests that the heavy-handed rhetoric present in Blakely is at least somewhat overblown. On the one hand, the majority opinion celebrates the glories of the jury trial, taking seriously "the need to give intelligible content to the right of jury trial.... Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary." (22) The jury, opines Justice Scalia, is the "circuitbreaker in the State's machinery of justice." (23) Justice O'Connor's dissent in Blakely, warns, on the other hand, that the consequences of the case will be "as far reaching as they are disturbing," and may lead to "an inevitable increase in judicial discretion with all of its attendant failings." (24) Alas, the lessons of Fisher's careful history suggest that both the triumphalist and the apocalyptic visions of Blakely's consequences are almost certainly off the mark.

What is likely to be the long-term effect of Blakely and Booker's rejection of the Guidelines as mandatory? Given the on-the-ground uncertainties about what will come next in the sentencing arena, I will briefly lay out a number of possible alternative approaches to sentencing that have been proposed, all of which would pass constitutional muster. Justice Breyer mentioned three possible approaches in his dissent in Blakely, and he outlined yet another one in his majority opinion in Booker. I will take up each of these in turn, as well as one more "fix" proposed after Blakely and designed to keep the existing sentencing regime relatively intact.

Justice Breyer outlines three potential options in his dissent in Blakely. First, he suggests, it is possible that legislators will create a pure, or nearly pure, system of determinate sentencing. In such a system, particular crimes would be pegged to particular punishments: say, five years for bank fraud, seven years for robbery, and so forth. Such a system would not take account of the specific circumstances in which the crime was committed nor other matters of fact that might make the perpetrator of this particular crime more or less culpable than someone else who committed the same crime. The strength of determinate sentencing is also its weakness; as Justice Breyer writes, "[s]imple determinate sentencing has the virtue of treating like cases alike, but it simultaneously fails to treat different cases differently." (25)

Second, legislators could take the exact opposite approach to sentencing, returning to significantly discretionary sentencing regimes in which either judges or probation officers have enormous authority to determine the appropriate sentence or the proper timing of release under the specific circumstances of each case. While such a system may offer the attractive illusion of highly particularized justice, it also carries the concomitant danger of significant sentencing disparities that may in fact be based in part on factors that ought to be irrelevant, such as the suspect's (or victim's) race, class, or gender. (26) While classic indeterminate sentencing granted a great deal of power to parole boards, it is equally possible that the legislature could enact broad statutory ranges for particular crimes and leave the precise sentencing within the range to the judge.

Third, legislators may try to preserve the blend of discretion and constraint contained in the Guidelines, but modify the Guidelines to comport with Blakely's requirements. Specifically, downward departures could still be made by judges, but those factors which now permit upward departures would either have to (a) become an element of the crime itself rather than an element of sentencing; or (b) continue to be found by a judge, but only if and when the defendant agrees to waive his constitutional right against judicial factfinding; or (c) be determined by a sentencing jury in a bifurcated process. (27)

Ironically, the Booker Court, in the majority opinion written by Justice Breyer, followed none of the options that Justice Breyer himself had put forward in his Blakely dissent the previous Term. Instead, the majority identified a fourth way for sentencing to proceed: the Guidelines could continue in operation, but as standards rather than rules. No longer binding upon judges, they could nonetheless continue to exert significant influence on sentencing practices as norms rather than as law--that is, they could in practice still be followed by most judges in most circumstances--but with the judiciary having the clear authority to depart, subject only to appellate review for "reasonableness." By making consultation of the Guidelines obligatory but adherence to them discretionary, Justice Breyer's Booker remedy appears to kill three birds with one stone. It cures the constitutional problem identified in Booker and Blakely; it returns to federal judges an authority that many very much desired, the power to depart from the Guidelines when they produce unreasonable results in particular cases; (28) and it (perhaps) maintains most of the consistency benefits that helped to motivate the Guidelines in the first place.

The Booker Court's remedy--requiring judges to consult the Guidelines when applicable, but making their actual application discretionary--is, however, merely the majority's guess about legislative intent; in actual fact, the legislature could well decide, in the wake of Booker, to engage in significant sentencing reform that would change the landscape considerably from what Booker proposes. Even if Congress does decide not to alter Booker's approach, whether Justice Breyer's clever scheme will prove practically viable--that is, whether the array of federal judges, once freed from the obligation to sentence according to the Guidelines, will nonetheless choose to self-regulate through continued adherence to them in most circumstances--remains to be seen. Expectations of continued (relative) sentencing uniformity might be unrealistic, and it would seem that to whatever extent unjustifiable disparities increase, so does the likelihood of congressional intervention. It is worth noting, however, that in one of the very first post-Booker opinions, and one that could prove influential, District Court Judge Paul Cassell clearly expressed his intention to continue to treat the Guidelines as presumptively applicable, except in those rare instances in which he finds especially good reasons to depart. (29)

Fifth, there exists another "fix" proposed after Blakely that would leave the system relatively intact. Namely, the legislature could respond by increasing the top range of each Guideline to the statutory maximum for the offense. In this case, all departures by judges would be downward departures, and hence, they would not run afoul of Blakely and the Sixth Amendment. (30) While this approach would give judges the authority to impose higher sentences across the board than they would have been allowed prior to Blakely, in actual fact, upward departures under the Guidelines were extremely rare, so it is, in practical terms, unlikely that courts would make frequent use of their increased discretion. (31)

This array of options and possibilities seems, at first glance, enormously broad and varied--and, indeed, Blakely did have the effect of seeming to remove the ground out from underneath the mandatory Guidelines approach to sentencing that had operated in the federal courts and many states for the past twenty years. However, Fisher's historical account invites a skeptical, though complex, reaction to all of these possible alternatives and the degree to which the choice among the dizzying array of possibilities will actually matter within the criminal justice system.

A close look at the history of plea bargaining invites both the recognition that less is at stake than some might think and the awareness that the details of institutional design do matter, albeit indirectly. Whatever approach to sentencing ends up emerging now, post-Booker, may well have some effect on the dynamics of plea negotiation, as the particular legislative response is likely to affect the balance of power among the court, the prosecutor, and the defendant. But at the same time, almost no matter how the legislature actually responds to Booker's remedy, a great deal simply will not change. More specifically, the dominance of plea bargains will assuredly survive even the total demise of the Guidelines. Indeed, even if we take either of the possible extreme cases--wholly indeterminate sentencing, on the one hand, or a pure system of determinate sentencing on the other--it seems highly probable that plea bargaining will remain comfortably entrenched.

Why so? The answer is only partly path dependence. Determinate sentencing would whisk us straight back to a world similar to that of the early Massachusetts liquor laws. A system that ties sentences strictly to charges obviously enhances the prosecutor's power to deal. In such a circumstance, charge bargains become practicable even without the acquiescence of the court.

But even with substantially indeterminate sentences, it seems likely that plea bargain rates would not diminish. So long as indeterminate schemes are structured to give the highly discretionary sentencing power to the judge rather than to a parole board, it seems exceedingly likely that judges--who still face enormous caseload pressures and who are also, by now, quite habituated to plea bargaining--will continue generally to accept the sentencing recommendation of the parties. (32) So long as the plea withdrawal rule, permitting a defendant to withdraw a plea if the court rejects the prosecutor's proposed punishment in favor of a longer sentence, continues in operation, technically broad sentencing discretion by courts would probably not have dramatic effects on rates of plea bargains. (33) To be sure, indeterminate sentencing might have an effect on the substance of the plea bargains, as it would shift some degree of power from the prosecutor to the judge. In his concluding chapter on the Federal Sentencing Guidelines, Fisher suggests that somewhat greater judicial discretion might have the effect of reducing the severity of sentences. This claim seems entirely plausible: defendants would be protected from increases in judicially imposed sentences by the plea withdrawal rule, but prosecutors would face the risk that the judge might recommend a lower sentence or otherwise undersell the prosecutor's offer. Thus, a sentencing regime that allowed judges broad ranges of possible penalties for particular crimes might be expected not to reduce plea rates; though it is far from certain, it could possibly reduce overall sentences by shifting some power back to the judge and hence permitting the defendant to accept the offer of whoever was prepared to grant the sweeter deal.

When Justice Souter worries in Booker that "the uncertainty resulting from the Court's regime change will infect the entire universe of guilty pleas" because it will "eliminate[] the certainty of expectations in the plea process," he fails to recognize the strong likelihood that judges will continue to be generally willing partners. (34) Moreover, to whatever degree there is somewhat greater residual uncertainty about the sentence that will result if a defendant refuses a plea, this uncertainty is not likely to prevent many plea bargains. Defense attorneys and prosecutors, repeat players all, will probably be able to make reasonably informed guesses about expected sentences. Thus, the additional discretion provided under Booker's approach to sentencing may affect the "price" of the plea bargain, but it is not likely to prevent the parties from agreeing on a deal.

To be sure, a genuinely indeterminate approach in which judges themselves had little or no control over sentences, a system in which it was the separate and subsequent power of a parole board to determine the release date, could indeed have a significant effect on the parties' power to plea bargain. But there is virtually no reason to imagine that regardless of what happens to our federal sentencing regime post-Booker, Congress would enact such a scheme. And here, again, Fisher's history proves instructive: he shows how, even when indeterminate sentencing was in vogue (which it certainly is not at present), judges were frequently able to concoct a set of mechanisms that allowed them to evade indeterminacy to preserve the possibility of plea bargains. To give just one example from the array of ingenious devices judges used to get around the obstacle of indeterminate sentences, California judges in the 1960s sometimes granted a defendant probation but imposed a fixed term in the county jail as a condition of probation (p. 193). At present, no institutional player has any particular reason to want genuinely indeterminate sentencing; it removes power from judge and prosecutor alike, and it is also rather at odds with the dominant legislative impulse to rein in judicial discretion and assure heavy sentences. This political reality, coupled with Fisher's many illustrations of how procedures seemingly at odds with plea bargaining seem, almost inevitably, either to be co-opted or to disappear, makes the genuinely indeterminate sentence seem an especially unlikely consequence of whatever regime succeeds the Guidelines both in federal courts and in the states, if indeed legislatures determine that a new approach to sentencing is required.

Fisher's analysis also suggests that an approach to sentencing that attempts to preserve many aspects of the current Guidelines by permitting the judge downward departures but not enhancements, or a process that requires jury factfinding of sentencing elements--or, for that matter, a two-jury process that bifurcates guilt and sentence--would also probably not have any significant impact on rates of plea bargains. Insofar as a bifurcated jury is more expensive and perhaps its outcome more uncertain, defendants' bargaining position might be somewhat improved, as prosecutors' risk aversion and limited resources might lead them to offer sweeter deals than they would with a jury factfinder and sentencing judge. (35) Conversely, in a single trial in which sentencing factors were transformed into elements, the prejudicial information that might be admitted for sentencing purposes within the trial itself might decrease the defendant's chances of acquittal. Insofar as a defendant is bargaining in the shadow of the expected result at trial, reducing the odds of acquittal would be expected also to decrease his bargaining position in plea negotiations. But again, while the specific balance of power might be somewhat modified under any of these approaches, there is no reason to think that the fundamental reality of plea bargaining's triumph would be altered. Indeed, following the Supreme Court ruling in 2000 in Apprendi v. New Jersey, (36) Kansas instituted a two-jury process, bifurcating the determinations of guilt and sentencing and allowing upward sentencing departures only upon a jury's determination of aggravating factors. This approach has apparently worked reasonably well, neither greatly increasing the length of trials nor the number of cases disposed of by trial rather than by plea agreement. (37)

Justice Breyer, in his Blakely dissent, expresses concern that the Kansas approach "reflects an uncomfortable fact," to wit, plea bargaining:
 The Court can announce that the Constitution requires at least
 two jury trials for each criminal defendant--one for guilt, another
 for sentencing--but only because it knows full well that more than
 90% of defendants will not go to trial even once, much less insist
 on two or more trials. (38)


A two-jury process obviously does increase the costs of criminal justice, and the more cases actually go to trial, the more burdensome this additional cost becomes. Indeed, such a system is probably workable if and only if trials are the exception, not the rule. (39) Justice Breyer apparently finds troubling an approach to sentencing whose basic functioning depends on plea bargaining as a widespread practice, and he expresses "fear" in Blakely that the Court's holding will "further embed plea bargaining practices." (40)

But to any reader of Fisher's book, this fear seems oddly, almost wildly out of touch with reality; it is almost impossible to see how plea bargaining could in fact be further embedded than it is already. With trial rates in federal courts below five percent, how much lower could they possibly go? As Fisher writes in his book's conclusion, "though its patrons may divide its spoils in different ways, it can grow no more. For plea bargaining has won" (p. 230). As courts and commentators debate the proper approach to sentencing in the wake of Blakely and Booker, they would do well to keep plea bargaining's triumph in mind. Fisher's history shows us that the most significant questions relate not to the consequences of our sentencing regimes on the relatively small handful of actual criminal trials, but instead, to the relative balance of power between prosecutor, defendant, and judge in the negotiation of pleas.

(1.) ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 287 (Phillips Bradley ed., Alfred A. Knopf, Inc. 1989) (1835).

(2.) Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992).

(3.) These statistics come from Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics Online tbl. 5.22, at http://www.albany.edu/sourcebook/pdf/t522.pdf (last visited Mar. 4, 2005). I am excluding from these numbers those cases that were dismissed. The rate of pleas is strikingly similar in state trials as well. See generally id. at tbl. 5.46, at http://www.albany.edu/sourcebook/pdf/t546.pdf (last visited Mar. 13, 2005) (showing that only five percent of convictions in state criminal cases were the result of trials).

(4.) In this focus on incentives and institutional design as the central explanatory categories, Fisher's approach is structurally similar to a public choice strand in recent criminal law scholarship. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001) (explaining the enormous growth of criminal law in terms of incentives for legislators, prosecutors, and judges).

(5.) 124 S. Ct. 2531 (2004).

(6.) 125 S. Ct. 738 (2005).

(7.) Booker, 125 S. Ct. at 749-50; Blakely, 124 S. Ct. at 2537-38. For the argument, made prior to Blakely, that all factual determinations requiring particular mandatory punishments must either go to the jury or the court must have the discretion to apply the law in a just manner, see Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 107-10 (2003).

(8.) For example, the sentencing range for grand larceny was zero to five years and the fine zero to six hundred dollars (p. 24).

(9.) Justin Miller, The Compromise of Criminal Cases, 1 S. CAL. L. REV. 1 (1927). For another classic early study of plea bargaining, see Raymond Moley, The Vanishing Jury, 2 S. CAL. L. REV. 97 (1928).

(10.) See generally John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REV. 3 (1978); John H. Langbein, Understanding the Short History of Plea Bargaining, 13 LAW & SOC'Y REV. 261 (1979).

(11.) On the elimination of the various competency restrictions in England, see CHRISTOPHER J. W. ALLEN, THE LAW OF EVIDENCE IN VICTORIAN ENGLAND (1997).

(12.) This claim is made in Mary Elizabeth Vogel, The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860, 33 LAW & SOC'Y REV. 161 (1999). For Fisher's discussion of Vogel on this point, see pp. 144-52.

(13.) On Lombrosian and biological ideas of crime in both Europe and America, see generally MARY GIBSON, BORN TO CRIME: CESARE LOMBROSO AND THE ORIGINS OF BIOLOGICAL CRIMINOLOGY (2002); NICOLE HAHN RAFTER, CREATING BORN CRIMINALS (1997); and RICHARD F. WETZELL, INVENTING THE CRIMINAL: A HISTORY OF GERMAN CRIMINOLOGY, 1880-1945 (2000).

(14.) See, e.g., THE MARKET REVOLUTION IN AMERICA: SOCIAL, POLITICAL, AND RELIGIOUS EXPRESSIONS, 1800-1880 (Melvin Stokes & Stephen Conway eds., 1996); WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA (1996); CHARLES SELLERS, THE MARKET REVOLUTION: JACKSONIAN AMERICA, 1815-1846 (1991).

(15.) For contemporary accounts of plea bargaining as contract, see Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J. 1969 (1992), and Scott & Stuntz, supra note 2. For a critique of plea bargaining that emphasizes the many factors that lead plea outcomes to diverge from rational contractual bargaining in the shadow of expected trial outcomes, see Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463 (2004).

(16.) For the argument that we ought to try to increase the number of "open" pleas--that is, pleas without any explicit or implicit concession from the prosecutor--by increasing the prosecutor's screening function, see Ronald Wright & Marc Miller, The Screening/ Bargaining Tradeoff, 55 STAN. L. REV. 29, 33 (2002).

(17.) 124 S. Ct. 2531 (2004).

(18.) Id. at 2543.

(19.) Id. at 2535.

(20.) 125 S. Ct. 738 (2005).

(21.) The rhetoric of "revolution" is commonplace in discussions of Blakely. See, e.g., NORA V. DEMLEITNER ET AL., SENTENCING LAW & POLICY: CASES, STATUTES GUIDELINES--2005 INTERIM SUPPLEMENT: THE BLAKELY/BOOKER REVOLUTION 1 (2005), http://www.law.emory.edu/sites/sentencing/docs/SuppSpring2005.pdf ("June 24, 2004 witnessed a revolution in the law of sentencing. The name of the revolution was Blakely v. Washington. Whether that revolution will topple old sentencing regimes, restructure them, or simply change daily life under them remains to be seen."). Note that for many, a sea change in sentencing policy is a quite welcome development, as the sentencing guidelines have been vociferously criticized. See, e.g., KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS (1998).

(22.) 124 S. Ct. at 2538-39.

(23.) Id. at 2539.

(24.) Id. at 2547-48 (O'Connor, J., dissenting).

(25.) Id. at 2553 (Breyer, J., dissenting).

(26.) Id. at 2554.

(27.) Id. at 2556-57. This approach comes closest to what Justice Stevens proposed in his Booker dissent. For the argument that Justice Stevens initially wrote this portion of Booker as a majority opinion and that it became a dissent only after one vote changed, see Eureka!! Tangible Evidence of a Flip-Flop, Posting of Douglas A. Berman to Sentencing Law & Policy (Jan. 14, 2005), at http://sentencing.typepad.com/sentencing_law_and_policy /2005/01/eureka tangible.html.

(28.) For a recent case illustrating why many federal court judges found their lack of sentencing discretion frustrating in particular cases, see United States v. Angelos, 345 F. Supp. 2d 1227, 1230-31 (D. Utah 2004) (finding the court obligated to impose a fifty-five-year sentence on a first-time drug offender because he possessed a gun during the drug deals, viewing this obligation as "unjust, cruel, and even irrational," and calling, within the opinion, for executive clemency). For a recent account putting Booker into the context of judicial frustration with ever greater limits to their sentencing discretion, see Jeffrey Rosen, Breyer Review, NEW REPUBLIC ONLINE, Jan. 31, 2005, at http://www.tnr.com/doc.mhtml?i=20050131&s=rosen013105.

(29.) United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005). The court wrote:
 Over the last 16 years, the Sentencing Commission has promulgated
 and honed the Guidelines to achieve these congressional purposes.
 Congress, too, has approved the Guidelines and indicated its view
 that Guidelines sentences achieve its purposes. Indeed, with respect
 to the congressionally-mandated goal of achieving uniformity, the
 Guidelines are the only way to create consistent sentencing as they
 are the only uniform standard available to guide the hundreds of
 district judges around the country. Therefore, in all future
 sentencings, the court will give heavy weight to the Guidelines in
 determining an appropriate sentence. In the exercise of its
 discretion, the court will only depart from those Guidelines in
 unusual cases for clearly identified and persuasive reasons.


Id. at 912 (emphasis in original).

(30.) This proposal was suggested by Professor Frank Bowman. Memorandum from Frank Bowman, Professor, Indiana University School of Law, on Blakely v. Washington, to the U.S. Sentencing Commission (July 27, 2004), http://sentencing.typepad.com/sentencing_law_and_policy /files/frank_bowman_original_memo to ussc_on_blakely.doc.

(31.) Id.

(32.) At present, states' approaches to sentencing vary: while many have meaningful sentencing guidelines, a significant number do not, and plea bargain rates nonetheless are uniformly high. On plea bargaining rates in state courts, see generally Bureau of Justice Statistics, supra note 3.

(33.) Fisher discusses the historical emergence of a plea withdrawal rule in Massachusetts (pp. 133-36.) For the modern rules governing pleas and their withdrawals, see FED. R. CRIM. PROC. 11.

(34.) United States v. Booker, 125 S. Ct. 738, 781 (Souter, J., dissenting).

(35.) Of course, the opposite speculation is also possible: If jurors were determining the sentence itself, rather than just sentencing "factors" on which a judge would then base a sentence, the question would arise whether a jury was inclined on average to provide more or less severe sanctions than judges. If more, a bifurcated process might actually increase the "price" of deals offered to defendants.

(36.) 530 U.S. 466 (2000).

(37.) See, e.g., Adam Liptak, Justices' Sentencing Ruling May Have Model in Kansas, N.Y. TIMES, July 13, 2004, at A12; Minn. Sentencing Guidelines Comm'n, The Impact of Blakely v. Washington on Sentencing in Minnesota (Aug. 6, 2004), reprinted in DEMLEITNER ET AL., supra note 21, at 75, 77 (noting that Kansas's change has not led to "significant growth in the number of trials related to aggravated departures").

(38.) Blakely v. Washington, 124 S. Ct. 2531, 2556 (2004) (Breyer, J., dissenting).

(39.) Of course, this point probably holds for a one-jury process as well.

(40.) Id. at 2557.

Jennifer L. Mnookin, Professor of Law, Barron F. Black Research Professor, University of Virginia School of Law. Thanks to Darryl Brown and Anne Coughlin for helpful comments and suggestions.
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