Download This Paper Open PDF in Browser

Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops

29 Pages Posted: 7 May 2016  

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2016

Abstract

American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.

Keywords: Criminal procedure, adversarial and inquisitorial process, prosecutors, criminal defense, transparency, procedural justice, legitimacy, Alford plea, colloquy, allocution

Suggested Citation

Bibas, Stephanos, Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops (2016). William & Mary Law Review, Vol. 57, P. 1055, 2016; U of Penn Law School, Public Law Research Paper No. 16-6. Available at SSRN: https://ssrn.com/abstract=2776664

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

Paper statistics

Downloads
367
rank
69,543
Abstract Views
1,694