Taming Negotiated Justice

Author: Stephanos Bibas, University of Pennsylvania Carey Law School
Date: June 20, 2012
Source: Penn Carey Law: Legal Scholarship Repository
Main Theme: The necessity of regulating plea bargaining as a critical component of criminal justice.

Historical Context: For four decades, the Supreme Court neglected the issue of plea bargaining, often viewing it as a speedy and efficient method to handle congested dockets.
Key Supreme Court Cases:
- Missouri v. Frye: Acknowledged that the Sixth Amendment regulates plea bargaining, allowing defendants to challenge deficient legal advice.
- Lafler v. Cooper: Reinforced that defendants can claim ineffective counsel regarding plea offers, affecting their decisions to accept or reject them.
Justice Scalia's Dissent: Criticizes the need for developing "plea-bargaining law" but acknowledges plea bargaining as a "necessary evil."

Current Reality: Approximately 97% of federal and 94% of state convictions result from guilty pleas, making plea bargaining a central part of criminal justice.
Issues with Current System:
- The waiver of rights through guilty pleas distorts the Supreme Court's perspective on what constitutes normal criminal procedure.
- This distortion has led to rules that may have unintended consequences on the plea bargaining process.

Prosecutorial Power and Sentencing:
- Sentences have been inflated, creating leverage in plea deals, which is perceived as unnecessary even by legislatures.
- Defendants may face longer sentences after opting for a trial due to inflated baseline sentencing.
Critique of Legal Perspectives:
- Justice Scalia's focus on factual guilt and post-trial sentences overlooks the systemic issues caused by widespread plea bargaining.
- Inflated sentences act as bargaining chips, distorting the perceptions of justice.

Justice Kennedy's Approach:
- Encourages flexibility for trial courts in managing ineffective counsel claims, suggesting that remedies should approximate justice for defendants.
- Courts may need to order re-offering of expired plea deals or strategically reduce sentences when appropriate.
Proposed Judicial Mechanisms:
- Develop a common law approach that gradually establishes standards, reflecting not only the legal framework but also the real-world implications of plea bargaining.
- Use judicial discretion akin to remittitur in civil cases to adjust sentences based on what defendants would have received had they accepted viable plea bargains.

Justice Scalia vs. Justice Kennedy:
- Scalia's originalist approach contrasts with Kennedy's practitioner-oriented view, emphasizing the practical realities of contemporary plea bargaining.
- The Sixth Amendment's application must evolve to ensure meaningful representation and justice in plea negotiations and outcomes.

Essential Argument: It's crucial for the legal system to recognize plea bargaining's significance and implement effective regulatory frameworks to safeguard defendants' rights.
Author's Background: Bibas is a law professor and director of the Supreme Court Clinic, with prior experience in the U.S. Attorney’s Office, providing him with practical insight into the legal system.