Alexandra makes what I think is perhaps the most valuable point of the whole discussion: namely, 1) that “Ninety-five percent of all felony cases are resolved through plea, not trial. As a result, judges and public adversarial procedures such as trials are decreasingly relevant; much of what goes on remains informal and undocumented.” So, I have a question for Alexandra—and perhaps Douglas, too.

Given the recent SCOTUS decisions in Gall and Kimbrough in which the court said that federal judges “may not presume that the guideline range is reasonable” do you think we will see an increase in defendants choosing to go to trial rather than taking a plea beforehand? Now that a trial judge is free to impose a lower sentence than the guideline range it seems reasonable to conclude that defendants might want to face trial. Or will the staggering conviction rate in the federal system deter defendants from going to trial? Finally, will the 5K motion become much less valuable now that a trial judge is free to depart from the guidelines? Is “The 5K Game”—in which cooperation is so essential to a defendant receiving a downward departure from the sentencing guidelines—over?