Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

46 Pages Posted: 20 Oct 2010 Last revised: 27 Sep 2011

Stephanos Bibas

University of Pennsylvania Law School

Date Written: September 27, 2011

Abstract

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

Keywords: criminal procedure, plea bargain, sentencing, sentence, informed, voluntary, Strickland, Hill v. Lockhart

Suggested Citation

Bibas, Stephanos, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection (September 27, 2011). California Law Review, Vol. 99, p. 1117, 2011; U of Penn Law School, Public Law Research Paper No. 10-33. Available at SSRN: https://ssrn.com/abstract=1694111

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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