Abstract This article reexamines the constitutional foundations and modern misuse of Alford pleas, arguing that what the Supreme Court intended as a narrow and exceptional procedure has drifted far from its origins. Drawing on the author’s experience as a trial judge, the piece explains the strict safeguards articulated in North Carolina v. Alford—including the requirement of strong evidence of guilt, a tangible benefit to the accused, and a truly voluntary choice—and demonstrates how these conditions have increasingly eroded in contemporary practice. The article critiques the expansion of Alford pleas into the realm of postconviction innocence litigation, where they operate less as constitutional compromises and more as coercive “Dark Pleas” that suppress truth seeking, avoid evidentiary testing, and preserve wrongful convictions. By exposing how these plea practices undermine transparency, accuracy, and public trust, the article calls for judicial restraint, mandatory evidentiary hearings, and statutory reforms to prevent Alford pleas from functioning as expedient tools that obscure innocence rather than illuminate it.
Abstract The military is the only American jurisdiction that nearly always proceeds immediately from a verdict of guilt to the imposition of punishment. This compressed timeline produces a self-reinforcing dynamic: Because counsel lack the time to develop detailed factual records and mitigation evidence between conviction and sentencing, the military’s new sentencing guidelines remain rudimentary—and their rudimentary character is then cited to justify maintaining the very procedural constraints that stunted their development. Recent legislative and regulatory reforms—specifically the mandate for judge-alone sentencing in noncapital cases and the introduction of sentencing parameters and criteria—have dismantled the historical justifications for immediate sentencing and made this cycle both more visible and more consequential. A comparative analysis of federal and state sentencing practices demonstrates that a default, waivable interval between conviction and sentencing in contested cases would break this cycle. To implement one, specific amendments should be made to the rules for courts-martial.
Abstract Appellate waivers have transformed from a marginal efficiency device into a structural tool that relocates control over legality from appellate courts to the plea bargaining table. In a system already dominated by guilty pleas, broad waivers create “no‑review zones” that insulate coercive plea practices, constitutional violations, unlawful sentences, and systemic errors from meaningful judicial scrutiny. Reconceptualizing criminal appellate review as a partly public right—held in trust to develop doctrine, supervise frontline actors, and maintain separation of powers—undermines the prevailing analogy between appellate waivers and ordinary contracts. Drawing on unconstitutional conditions doctrine and scattered pockets of nonwaivability, this article proposes a unified framework under which exchanges of appellate‑review rights for plea benefits are treated as inherently suspect and unenforceable except where they are administered in a way that does not unduly burden the exercise of constitutional rights.
Abstract Plea bargaining has long had a victim problem. Victims report feeling excluded from the criminal system through the often shadowy plea process. Over the last many decades, every state and the federal system have responded to these concerns by promulgating statutes requiring prosecutors and courts to consult with and provide information to victims. Despite this proliferation of statutes, there remains a gap between legislative intent and the lived experience of crime victims. The exclusion of victims through plea bargaining is merely another chapter in the story of victim alienation from the criminal system. There are many reasons to be concerned about the “vanishing trial,” but at least one of them should be that victims rarely have an opportunity to be heard in a system with no trials. After reviewing the current landscape of laws meant to protect victims during the plea process, this essay discusses some of the barriers that prevent these laws from being effective. Finally, it briefly outlines emerging proposals from advocates and legal scholars aimed at restoring victim agency in the plea context.
Abstract Guilty pleas dominate the resolution of criminal charges in the U.S. criminal justice system. In entering guilty pleas, the law is clear that defendants must do so knowingly and intelligently (and voluntarily) for the plea to be deemed valid. The belief that defendants who plead guilty generally understand and appreciate the process and consequences of ceding their rights is the ultimate legal fiction. This article first examines the possible ramifications of assuming the majority of defendants make valid plea decisions, as many courts do. Controversial plea practices are often sanctioned by courts precisely because of the presumption that defendants made knowing and voluntary decisions. The current mechanism of asking defendants yes-no questions via judicial plea colloquies is an ineffective measure of assessing defendant plea validity. New data demonstrates how the judicial colloquy is inadequate to determine defendants’ actual plea comprehension, revealing, for example, that a majority of defendants who just pleaded guilty could not fully define words like plea, right, and appeal. Relying on defendants’ self-reported claims of understanding and appreciation is insufficient to determine whether the plea was knowing and intelligent, particularly for younger and less educated defendants.
Abstract Coercive plea practices can easily yield a trial penalty or trial tax—a vastly, sometimes geometrically increased sentence imposed simply because an accused person asserts the fundamental right to challenge the prosecution’s evidence. The problem is pervasive in federal and state courts, and although some judges have expressed concerns and sought to redress the problem, all too often it is reflexively dismissed as an acceptable offshoot of plea bargaining. There is a pressing need for national reform to alter the prevailing culture.
Abstract The modern plea-driven criminal justice system suffers from a deep constitutional legitimacy crisis rooted in pervasive coercion and the near-total displacement of citizen participation. While courts have long accepted mass plea bargaining, they have failed to grapple with the coercive dynamics produced by inflated trial penalties, asymmetric bargaining power, and subjective pressures that render meaningful judicial review impossible. To address these structural defects, this article proposes “plea assessment panels”—small citizen bodies that evaluate proposed plea offers for potential coerciveness and impose a punishment ceiling when prosecutorial threats cross the line. By realigning incentives, generating community-grounded norms, and restoring a measure of democratic oversight to plea negotiations, these panels would mitigate extreme coercion, create a functional common law of plea bargaining, and revive the Framers’ vision of active citizen participation in criminal justice within a system now dominated by negotiated guilty pleas.
Abstract The term “plea bargaining” is a misnomer that obscures the profound power imbalance defining federal plea practices. Rather than a mutual negotiation between parties with relatively equal leverage—as the Supreme Court has repeatedly characterized it—the modern plea process functions as an imposition by prosecutors, who control nearly all substantive terms and exert extraordinary pressure through mandatory minimums, sentencing guideline disparities, and the threat of significantly harsher post-trial penalties. Supreme Court cases such as Bordenkircher v. Hayes,Missouri v. Frye,Padilla v. Kentucky, and Lafler v. Cooper demonstrate that while defendants and defense counsel bear extensive constitutional and professional obligations during plea discussions, prosecutors operate with remarkably few constraints. With approximately 97 percent of federal convictions arising from guilty pleas and with defense counsel responsible for navigating a labyrinth of collateral consequences, sentencing rules, and procedural waivers, the supposed “give and take” of plea bargaining is largely fictional—masking a system defined by coercion, structural inequality, and overwhelming prosecutorial dominance.
After years of criticism that the drug trafficking guideline places too much emphasis on drug type and weight, ignoring the defendant’s role and motivation, the U.S. Sentencing Commission has finally promulgated an amendment instructing courts to provide an offense level adjustment for defendants who performed “low-level trafficking functions.” Under the new instructions, more defendants should be eligible for a role adjustment than had been the case under the general instructions contained in Chapter 3 of the Guidelines Manual. Further, by identifying a number of pertinent sentencing factors, the amendment may also assist judges in determining an appropriate sentence under 18 U.S.C. § 3553(a). Indeed, the factors set forth in the amended guideline have long been considered by judges in the post-Booker era. Ultimately, while the amendment is a step in the right direction, it remains up to sentencing judges to engage in the careful analysis the statute requires.
Abstract This essay was originally written in the summer of 2024 as an invited comment to the United States Sentencing Commission as part of their process to promulgate updated sentencing guidelines. The invitation raised the broad question of how federal criminal sentencing might be made fairer and more just. This essay argues that we can work toward accomplishing that goal by ensuring that prosecutors, defense attorneys, and judges are empowered to consider the full ramifications of a criminal sentence when deciding an appropriate sentence. To better facilitate this goal, this essay argues that the Sentencing Commission might help lawyers and judges systematically to consider issues like solitary confinement, the punishment of slavery or involuntary servitude, and the way that a sentence will impact people beyond the defendant. Encouraging these inquiries is vital because the Sentencing Commission is excellently positioned to both study and guide how the many seemingly disconnected decisions of lawyers and judges in individual sentencing hearings lead to the broader systemic impacts of the federal criminal legal system. This essay concludes with a coda reflecting on the amendments to the Guidelines that the Sentencing Commission ultimately proposed. It argues that those amendments are a step in the right direction, but to truly make this system one deserving of the title “justice,” they must be the first step of many.
Mandatory minimum sentences in federal drug cases often result in disproportionate punishment for low-level offenders. To address this, Congress introduced the “safety valve” in 1994, allowing certain defendants to avoid mandatory minimums if they meet five criteria. While four requirements align with the goal of identifying less culpable individuals, the fifth—mandating a full proffer of all information to the government—effectively forces cooperation unrelated to culpability. This article examines the legislative history of the safety valve, critiques the expansive interpretation of the proffer requirement by courts, and highlights the significant risks and stigma associated with cooperation, including threats to physical safety in prison. It argues that the proffer requirement is inconsistent with the safety valve’s purpose and proposes a modest statutory amendment: limiting disclosure to the defendant’s own role in the offense. Such reform would preserve individualized sentencing without imposing unnecessary dangers on low-level offenders.
Abstract Reliable and accurate data is the bedrock for evidence-based criminal justice policy. When a sentencing commission or other agency evaluates fairness and uniformity, they need to draw on accurate race and ethnicity data. This data is often missing or inaccurate. That problem is particularly acute for Hispanic ethnicity data. This article summarizes both prospective and retrospective remedies for missing and inaccurate race and ethnicity data. Research on gathering race and ethnicity data from other domains offers important best practices for criminal justice agencies. Collecting better data prospectively requires considerable coordination, planning, and administrative resources. Retrospective remedies are a crucial tool to enable data analysis and policy making in the interim. This article presents an overview of surname analysis, geocoding, and machine learning, three strategies to impute missing or inaccurate race and ethnicity data. Each of these strategies has trade-offs in their accuracy, complexity, and resources needed, but any of them is far better than the status quo of poor-quality data.
Abstract The U.S. Sentencing Commission’s 2024–25 amendment cycle revealed a troubling contradiction: What started as an effort to reform the harsh drug guidelines ended with the Commission enhancing the punishment for certain fentanyl offenses. Despite statutory mandates to use evidence-based approaches, the Commission did not invite the views of outside public health experts did not consider decades of research showing that increased sentences do not reduce drug misuse or overdose deaths. To fulfill its statutory responsibility to incorporate evidence-based approaches and reflect advancements in human knowledge, the Commission must institutionalize multidisciplinary perspectives.
Abstract For decades, federal drug sentencing has been driven by sentencing guidelines and mandatory minimum statutes widely recognized as overly severe. This article explores the U.S. Sentencing Commission’s efforts to reform the federal drug sentencing guidelines and their significance for people previously sentenced under harsher regimes. Special attention is given to how these reforms interact with the federal sentence reduction statute, 18 U.S.C. § 3582(c)(1)(A), offering the possibility of relief for those imprisoned under the old guidelines. In doing so, this article underscores the need for continued reform to promote justice and proportionality in federal drug sentencing.
Abstract Sentencing practices for fentanyl-related offenses have become increasingly punitive, reflecting the government’s approach—discredited by many—to the crack epidemic and the broader War on Drugs. While overdose deaths have abated over the last three years, public fear drives demand for aggressive law-enforcement responses. This article argues that this approach is misguided in the case of low-level offenders, where defendants may be unaware that the substances they distribute contain fentanyl. The current Federal Sentencing Guidelines and the sentencing practices they have engendered ignore the structural differences between fentanyl distribution and previous drug markets. The 2025 amendments to the Guidelines have potential to better address role adjustment for low-level offenders, but it should not be the only solution. While strong law-enforcement responses to cartels makes sense, it does not make sense to throw the book at street-level offenders who may not know that what they are distributing is fentanyl.
This article offers a primer on plea bargaining in the U.S. military justice system. American military justice is like criminal justice in the rest of the country in that the lion's share of cases are plea bargained. But there are key differences between military and civilian plea bargaining. First, a central factor of negotiations in military plea bargaining is whether the accused will keep his or her job. Second, the military has a wider range of disposition options than traditional penal sanctions, including nonjudicial punishment and administrative sanctions. Finally, the military seemingly permits more discretion and offers less binding guidance in its requirements for plea bargaining; this vagueness is partially offset by nonbinding disposition guidance.
Abstract Federal sentencing law has long struggled to balance the breadth of drug conspiracy liability with the principle of proportional punishment. The statutory “safety valve” provision, codified at 18 U.S.C. § 3553(f) and mirrored in the U.S. Sentencing Guidelines, was designed to provide relief from mandatory minimum sentences for low-level, nonviolent offenders. Yet its requirement that defendants disclose all information concerning the offense sometimes places family-member codefendants in an untenable position: they may avoid harsh penalties only by incriminating loved ones. The requirement also conflicts with other provisions of the Guidelines that provide guidelines reductions, but not relief from mandatory minimum sentences, to individuals motivated by an intimate or familial relationship. This article argues that the current safety valve regime undermines both sentencing fairness and the rehabilitative potential of family relationships by compelling family members to choose between their liberty and their loyalty. Congress and the Sentencing Commission should therefore amend safety valve to exclude disclosures implicating loved ones. Such a modification would harmonize federal sentencing law with its own recognition of family ties as a mitigating circumstance, reduce disparities across jurisdictions, and mitigate the collateral damage that drug prosecutions inflict on families and communities.
