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September 26, 2017

Alliance for Justice assails Third Circuit nominee Stephanos Bibas for his criminal justice work and writings

As revealed in this post from June, I was stoked when sentencing scholar (and my occasional co-author) Stephanos Bibas was nominated by Prez Trump for an open seat on the Third Circuit. But, though Prof Bibas has gotten lots of support from lots of folks across the political aisle, the folks at Alliance for Justice have released this critical new report his record and AFJ President Nan Aron say that in his coming confirmation hearing the "onus is on him to alleviate concerns about his approach to the rights of individuals who might find themselves before him in court."

I surmise that AFJ releases a critical report about every one of the nominees put forward by AFJ, but my professional connections to Prof Bibas and his working in the sentencing arena prompted me to review this particular AFJ report about his work and writings.  This AFJ press release summarizes the report's articulated concerns:

Among other things, AFJ’s report notes:

  • Bibas has written about the treatment of prisoners in ways that are unsettling and raise questions about his respect for their constitutional rights. In a 2012 book, he praises colonial-era punishments such as public whippings that inflict pain and humiliation on convicted persons, suggesting that public shaming is not practiced enough today.  This philosophy regarding punishment would be seriously harmful in a federal judge charged with reviewing countless sentencing decisions that will have enormous and lasting impacts on the lives of real people.  Bibas also argues that prisoners could be forcefully conscripted into the military.

  • In an article, Bibas insisted that while over-incarceration is real, it is not reflective of racial disparities in the justice system or society as a whole as the “liberal” “narrative” maintains.  He also argued that the growth in the prison population was “driven mainly by violent and property crime, not drugs.”

  • Bibas has shown a serious misunderstanding about the nature of drug addiction, having argued that it is not a disease but something that addicts can choose to overcome.

  • Bibas signed an open letter criticizing the University of Pennsylvania’s adoption of new procedures for investigating and resolving sexual assault complaints on campus. The letter made troubling statements suggesting that victims are in part responsible for assaults, and advocated for the university to adopt an adjudicative system for these cases that closely mirrors the criminal justice system. The Supreme Court has discouraged schools, which are supposed to provide safe learning environments for all students, from attempting to replicate criminal investigations and prosecutions on campus.

  • While serving as a prosecutor in the Southern District of New York, Bibas used federal prosecutorial, law enforcement, and court resources to bring charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. On the morning of the trial, he turned over evidence corroborating the defense that records suggest he may have withheld for some time. The cashier was acquitted, and the prosecution faced scorching media criticism.

For a host or reasons, I am disinclined to engage with the particulars of the AFJ report.  But I am inclined to predict that Prof Bibas, based on his past criminal justice work and writings, will be much more inclined to respect criminal defendants' rights than many other past and future judicial nominees.

Prior related post:

September 26, 2017 at 02:23 PM | Permalink


I do have to wonder if corporal punishment might not work better than our current warehousing technique for getting offenders to _want_ to change. I do not believe any corrections method works without an honest desire by the offender to alter their ways. And given that the 13th amendment allows chattel slavery upon criminal conviction I really don't see the legal argument against forced conscription for same. I certainly see a desirability argument just not any sort of constitutional impediment.

I also have major problems with the hearing systems many schools appear to have adopted. If schools are going to handle complaints that closely mirror criminal charges (sexual assault and the like) they likely should have procedures that more closely mirror criminal process than is needed for merely academic charges (cheating, plagiarism and so on). I would certainly say that the showing should have to be at least as good as for a civil court determination (competent evidence with a real opportunity to cross-examine for example).

Posted by: Soronel Haetir | Sep 26, 2017 4:56:41 PM

qui tacet consentire videtur

Posted by: Dino | Sep 26, 2017 4:57:50 PM

Yes, one article co-written by the two people here involved "engaging capital emotions" and had this comment:

"But those who oppose the death penalty need to stop simply reciting bloodless arguments about cost and deterrence in order to engage in rich emotional dialogue." I agree that cost and deterrence alone is not convincing though at times some posts on this blog do focus on cost (while not being completely "abolitionist" -- arguing capital punishment is acceptable in some cases).

I have seen some who otherwise are no big fans of Trump be supportive of various judicial picks. Sometimes, I found this support misguided. Other times, perhaps not so much. Among the nominees are some that would have been reasonably found if done so by a more credible chief executive.

Posted by: Joe | Sep 26, 2017 5:52:18 PM

"Sometimes, I found this support misguided. Other times, perhaps not so much."

STFU, you weasel. Post a comment when you have made up your mind. Your weaselly remarks drive me crazy.

I nominate Joe for the next Supreme Court opening. He will drive those old and sick leftist colleagues to immediately resign, opening half the seats to Trump nominees.

Posted by: David Behar | Sep 26, 2017 10:00:05 PM

After reading this, I take back everything I have said about Prof. Bibas. He is a brilliant and fair person, who will make an excellent judge. He also attended one of the very best law schools in the world, the Yale Law School. He received a top notch education there. Excellent choice for the bench.

Posted by: David Behar | Sep 26, 2017 10:18:39 PM

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