Taming Negotiated Justice

Overview

• Title: Taming Negotiated Justice

• Author: Stephanos Bibas, University of Pennsylvania Carey Law School

• Publication Date: June 20, 2012

• Repository: Penn Carey Law: Legal Scholarship Repository

• Citation: Bibas, Stephanos, "Taming Negotiated Justice" (2012). All Faculty Scholarship. 455.

Key Themes in "Taming Negotiated Justice"

The Supreme Court and Plea Bargaining

• The Supreme Court has begun to regulate plea bargaining by acknowledging its significance in the justice system through cases like Missouri v. Frye and Lafler v. Cooper.

• These decisions indicate that the Sixth Amendment applies to plea negotiations, allowing defendants to contest ineffective legal advice that leads them to reject favorable plea offers.

• Justice Scalia's dissent warns of creating a new area of jurisprudence, labeling plea-bargaining law as a "boutique."

• Bibas counters that since the majority of criminal cases end in guilty pleas, plea-bargaining law should be a core focus of criminal procedure.

Historical Context and Judicial Insight

• Historically, the Supreme Court has not fully realized the importance of plea bargaining due to the waivers that accompany guilty pleas.

• Guilty Pleas Waivers: These waivers lead to cases primarily concerning trial convictions reaching the Court, presenting a skewed perception of justice.

Implications of Frye and Lafler

• The Frye and Lafler rulings may correct past misconceptions by enabling appeals based on ineffective plea-bargaining counsel.

• Justice Scalia's arguments suggest that factual guilt alone determines justice, overlooking how plea bargaining distorts sentencing practices, leading to inflated sentences as bargaining chips.

• The decision raises concerns about the adequacy of representation and the realities of sentencing that defendants face.

Challenges of Remedial Justice

• Crafting remedies for ineffective assistance in plea bargaining poses challenges. Specific performance may be impractical; rescission may undervalue the impact of missed plea deals.

• The Supreme Court has left it to lower courts to develop practical remedies, balancing the roles of judges and prosecutors while approximating the outcome if proper counsel had been provided.

Jurisprudential Perspectives

• The divide between Justices Scalia and Kennedy reflects differing judicial philosophies and experiential backgrounds.

• Justice Kennedy's pragmatic view favors adapting legal interpretations to the realities of modern jurisprudence and defendants' rights, as governed by the Sixth Amendment.

• The outcomes of many plea negotiations can lead to overincarceration if Sixth Amendment violations are left unaddressed.

Conclusion

• The article argues for the necessity of regulating plea bargaining comprehensively to enhance the fairness and effectiveness of the justice system, ensuring that the rights embedded in the Sixth Amendment translate effectively into the realm of negotiated justice.

The author, Stephanos Bibas, is in favor of regulating plea bargaining comprehensively. In his article "Taming Negotiated Justice," he argues that the justice system needs to enhance fairness and effectiveness by ensuring that the rights embedded in the Sixth Amendment translate effectively into the realm of negotiated justice.