Plea negotiations under the federal sentencing guidelines: Guideline circumvention and its dynamics in the post-Mistretta period

Northwestern University Law Review

Volumn 91, Issue 4, 1997, Pages 1284-1316

  Schulhofer, Stephen J ^a   Nagel, Ilene H ^a  

^a NONE

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EID: 0040930733     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (24)

1. 488 U.S. 361 (1989).
2. The identities of the ten jurisdictions have been kept anonymous to preserve confidentiality.
3. See, e.g., United States v. Harrington, 947 F.2d 956, 965 n.5 (D.C. Cir. 1991) (Edwards, J., concurring) ("One wonders whether the Guidelines, in transferring discretion from the district judge to the prosecutor, have not left the fox guarding the chicken coop of sentencing uniformity."); United States v. Stanley, 928 F.2d 575, 583 (2d Cir.) (Feinberg, J.) (noting concern with the Guidelines' transfer of discretion from the district court to the prosecutor), cert. denied, 502 U.S. 845 (1991); United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir. 1990) (Rosenn, J., concurring) (observing that the combination of guidelines and mandatory minimums have essentially "replaced judicial discretion over sentencing with prosecutorial discretion"); see also United States v. Restrepo, 903 F.2d 648, 658 (9th Cir.). vacated, 912 F.2d 1568 (9th Cir. 1990) (Pregerson, J., dissenting); United States v. Redondo-Lemos, 754 F. Supp. 1401, 1403-05 (D. Ariz. 1990) (invalidating sentences on constitutional grounds and expressing obvious frustration with the fact that prosecutors, "some just out of law school," should have "unfettered discretion," while experienced judges have little remaining sentencing discretion), rev'd. 955 F.2d 1296 (9th Cir. 1992); United States v. Cobbins, 749 F. Supp. 1450, 1456 (E.D. La. 1990) (criticizing the "de facto transfer" of sentencing power from judges to prosecutors and concluding that disparity in sentencing had merely shifted to the executive branch); United States v. Adonis, 744 F. Supp. 336, 348 (D.D.C. 1990) ("[T]o vest the bulk of the sentencing authority in partisan prosecutors rather than dispassionate judges is bound to do harm to the maintenance of due process in the criminal justice system.").
4. See infra note 25 and accompanying text.
5. See Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines, 66 S. CAL. L. REV. 501 (1992)
6. [hereinafter Nagel & Schulhofer, A Tale of Three Cities]; Stephen J. Schulhofer & Ilene H. Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 231 (1989) [hereinafter Schulhofer & Nagel, Negotiated Pleas].
7. [hereinafter Nagel & Schulhofer, A Tale of Three Cities]; Stephen J. Schulhofer & Ilene H. Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 231 (1989) [hereinafter Schulhofer & Nagel, Negotiated Pleas].
8. [hereinafter Nagel & Schulhofer, A Tale of Three Cities]; Stephen J. Schulhofer & Ilene H. Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 231 (1989) [hereinafter Schulhofer & Nagel, Negotiated Pleas].
9. When the Sentencing Commission drafted the first iteration of guidelines for individual offenders in 1986, there were three separate drafting approaches employed. First, for the vast bulk of offenses (e.g., robbery, theft, arson), the Commission examined data estimating the average time served by offenders convicted of these offenses in the past. Guidelines were then set largely to mirror these estimates, taking into account the percent of offenders whose sentence did or did not include a term of imprisonment. See Stephen G. Breyer. The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 HOFSTRA L. REV. 1, 16-18 (1988); Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 927-32 (1990). Second, for a select few white collar offenses (e.g., antitrust, tax, fraud), guidelines were deliberately set to increase the sentences beyond what had been the pattern in the past. This decision was made to comport with 28 U.S.C. § 994(m) (Supp. V 1983-1988), directing the Commission to note the fact that past sentences might sometimes have under-reflected the seriousness of the offense. See Nagel, supra, at 927. Finally, for those offenses for which Congress had recently enacted mandatory minimum penalties, (e.g., 21 U.S.C. § 841(b) (1982) (drug trafficking) and 18 U.S.C. § 924(c) (Supp. V 1983-1988) (use of a firearm in connection with a violent crime or drug trafficking offense)), the Commission set aside past practice as not relevant because congressional action superseded those data as setting normative anchor points. For these offenses, the Commission treated the mandatory minimums as anchor points because when Congress had tied these minimums to drug quantities, the guidelines escalated proportionately, by drug quantity.
10. When the Sentencing Commission drafted the first iteration of guidelines for individual offenders in 1986, there were three separate drafting approaches employed. First, for the vast bulk of offenses (e.g., robbery, theft, arson), the Commission examined data estimating the average time served by offenders convicted of these offenses in the past. Guidelines were then set largely to mirror these estimates, taking into account the percent of offenders whose sentence did or did not include a term of imprisonment. See Stephen G. Breyer. The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 HOFSTRA L. REV. 1, 16-18 (1988); Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 927-32 (1990). Second, for a select few white collar offenses (e.g., antitrust, tax, fraud), guidelines were deliberately set to increase the sentences beyond what had been the pattern in the past. This decision was made to comport with 28 U.S.C. § 994(m) (Supp. V 1983-1988), directing the Commission to note the fact that past sentences might sometimes have under-reflected the seriousness of the offense. See Nagel, supra, at 927. Finally, for those offenses for which Congress had recently enacted mandatory minimum penalties, (e.g., 21 U.S.C. § 841(b) (1982) (drug trafficking) and 18 U.S.C. § 924(c) (Supp. V 1983-1988) (use of a firearm in connection with a violent crime or drug trafficking offense)), the Commission set aside past practice as not relevant because congressional action superseded those data as setting normative anchor points. For these offenses, the Commission treated the mandatory minimums as anchor points because when Congress had tied these minimums to drug quantities, the guidelines escalated proportionately, by drug quantity.
11. See Schulhofer & Nagel, Negotiated Pleas, supra note 5, at 235-42.
12. Id. at 242-43.
13. Id. at 252-56.
14. U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A, § 2 (1995) [hereinafter U.S.S.G.].
15. See, e.g., U.S. SENTENCING COMM'N 1993 ANN. REP. tbl. 21 (88.5% national plea rate).
16. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
17. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
18. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
19. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
20. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
21. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
22. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
23. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).
24. For one commentator's analysis of the potential impact of plea practice on the Federal Sentencing Guidelines, see Albert W. Alschuler, Departures and Plea Agreements Under the Sentencing Guidelines, 117 F.R.D. 459 (1988) (exhorting judges to use their power to limit adverse effects of prosecutorial discretion) [hereinafter Alschuler, Departures and Plea Agreements]. The general desirability of plea bargaining has been the subject of exhaustive debate. Some commentators have argued that plea bargaining is or could become a desirable method of disposition. See, e.g., PAMELA J. UTZ, SETTLING THE FACTS: DISCRETION AND NEGOTIATION IN CRIMINAL COURT 127-48 (1978) (discussing inner dynamics of negotiated system of justice); Thomas W. Church, Jr., In Defense of "Bargain Justice," 13 L. & SOC'Y REV. 509, 513-16 (1979) (suggesting plea bargaining need not be unfair either to defendant or public); Arnold Enker, Perspectives on Plea Bargaining, reprinted in THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 108, 112 (1967) (discussing administrative efficiency and maximization of accurate verdicts). Others view plea bargaining as unjust in principle or in its practical effects. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 652 (1981) (arguing that plea bargaining is an inherently unfair and irrational process); Ralph A. Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 618-27 (1987) (advocating the abolition of plea bargaining); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984) (offering bench trial model as preferable alternative to plea bargaining); Stephen J. Schulhofer, No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts, 1985 AM. B. FOUND. RES. J. 519, 582-91 (1986) (arguing that plea bargaining is not inevitable).