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.
