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October 23, 2010

"Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection"

The title of this post is the title of this new piece by Professor Stephanos Bibas now available via SSRN. Here is the abstract:

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining.  For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas.  This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview.  In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way.  Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor.  To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

October 23, 2010 at 10:11 PM | Permalink


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Slick, super-selfish, street smart criminals, amoral prosecutors bent on scoring wins to promote their future defense careers or political careers. Let those vipers eat each other.

The party needing the protection is the public, and the thousands of future crime victims as these criminals are immunized, protected, and loosed by the lawyer traitor.

I rape and stab a victim 20 times, leaving her for dead. She is too terrorized to testify. I take a plea of breaking and entering or some other unrelated, fictitious crime. Now, I have been adjudicated a non-violent offender. A judge declares prison overcrowding to be unconstitutional. I am now on the list of non-violent offenders qualifying for early release.

Because early release is not a right, nor is the failure to release a violation of due process, the original charge should be the only one considered when judges rule in favor of emptying the prisons of their clients, the criminals.

The non-violent, adjudicated charge is the consumer fraud. The original charge is impliedly admitted to in the plea.

Posted by: Supremacy Claus | Oct 23, 2010 10:46:53 PM

an even easier solution. NO more plea bargains...if the state has a case.....PROVE IT! or DROP IT!

Posted by: rodsmith | Oct 24, 2010 2:28:35 PM

Rod: There are roughly 40,000 trials out of 2 million prosecutions. We could not sustain 2 million trials.

OK end plea bargains, but also end trials. They come from the Scholasticist method of disputation to arrive at an answer to a question. That is from a church. No part of the trial has any scientific validation. All of it is quackery, again from a religion. The error rate at condemning innocent people is unacceptably high.

The alternative? Review of all case evidence by an inquisitorial judge. The latter is to be held accountable in torts for both freeing a guilty person who hurts more people, or for condemning an innocent defendant.

Posted by: Supremacy Claus | Oct 24, 2010 2:35:29 PM

Supremacy Claus,

You miss Rod's point. How many of the two million prosecutions you refer to are for crimes with actual victims and how many are victimless? Is the public safety improved when non-violent offenders are removed from the streets via plea bargaining?

Posted by: Jardinero1 | Oct 25, 2010 2:59:26 PM

lol well maybe just MAYBE we have TOO MANY LAWS! might be past time to go back to basics! NO VICTIM!.....NO CRIME!

as for the numbers no i don't miss the point we have too much time effort and money tied up in useless criminal prosecutions and prisons from one end of the country to the other! If the state was forced to either take every case to trial or dismiss! then they would either wise up and get smart! or the system would implose and we could rebuild!

Posted by: rodsmith | Oct 25, 2010 6:04:00 PM

you hit it on the hed jardinero1 We have far too many crimes with no victm at all. Heck now we even have people going to jail even when they had NO CRIMINAL INTENT and just did something dumb!

Posted by: rodsmith | Oct 25, 2010 6:05:32 PM

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