Exacerbating Injustice

University of Pennsylvania Law Review PENNumbra, Vol. 157, p. 53, November 2008

U of Penn Law School, Public Law Research Paper No. 09-09

6 Pages Posted: 19 Mar 2009

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Date Written: November 1, 2008


This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This narrow, utilitarian approach downplays the importance of public faith and confidence in the criminal justice system. It also risks undercutting the pleas of guilty defendants, who could later change their minds and tell themselves and others that their pleas were simply legal fictions, leaving them in denial and frustrating victims. Most fundamentally, Bowers' utilitarianism sacrifices the deontic command not to facilitate convicting the innocent. Though the massive flaws in criminal justice are frustrating, we must not sacrifice justice as our ideal.

Keywords: Criminal sentences, justice system, plea bargaining, legal fiction, recidivists, wrongful conviction, convicting the innocent, utilitarianism, guilty plea, innocent defendants, innocence, criminal procedure

JEL Classification: K14

Suggested Citation

Bibas, Stephanos, Exacerbating Injustice (November 1, 2008). U of Penn Law School, Public Law Research Paper No. 09-09; U of Penn Law School, Public Law Research Paper No. 09-09. Available at SSRN: https://ssrn.com/abstract=1365302

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/

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