Fundamental Fairness & the Path from Santobello to Padilla: A Response to Professor Bibas

18 Pages Posted: 9 Sep 2011 Last revised: 13 Sep 2011

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law

Date Written: September 7, 2011


Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. In a forthcoming article, entitled "Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection," Bibas turns his attention to the Court’s recent decision in Padilla v. Kentucky. In Padilla, the Court held that a constitutionally effective defense attorney must advise her non-citizen client of the immigration risks and consequences of pleading guilty. In his article, Bibas casts the Padilla decision as a radical departure from the Court’s conventional laissez-faire approach to plea-bargaining and guilty pleas. In this response, I explain why he is mistaken to view the decision as a change of constitutional course. Padilla is not, as Bibas claims, “the Court’s first case to treat plea bargaining as a subject worthy of constitutional regulation in its own right and on its own terms.” In fact, the Court has regulated plea-bargaining on its own terms for decades. Indeed, Padilla’s roots can be traced to the Court’s earliest plea-bargaining decisions - cases in which the Court applied a constitutional interpretive method distinct from the method it has applied typically to constitutional questions of trial procedure. Specifically, in almost all of the seminal pre-Padilla cases, the court invoked fairness principles - most notably, the notion of unfair surprise - to decide whether the procedures that produced the guilty pleas were constitutional. Padilla is of the same pedigree. The thrust of the Court’s holding in Padilla is that it is fundamentally unfair to leave a defendant in the dark about the deportation consequences of his guilty plea. Bibas fails to perceive that the fairness principles that animate the Court’s decision in Padilla are the same principles that have animated its guilty-plea and plea-bargaining jurisprudence all along. Thus, Bibas takes Padilla to represent a course correction when, in fact, it represents only an unfamiliar result reached through conventional means. This is not to say that the Padilla decision is insignificant - just that it represents a substantial step down a well-worn path.

Keywords: Plea-bargaining, guilty pleas, ineffective assistance of counsel, fundamental fairness, accuracy, Padilla v. Kentucky, Santobello v. New York, Brady v. United States, Bordenkircher v. Hayes, Hill v. Lockhart, Strickland v. Washington

JEL Classification: K14, K40, K41, K42

Suggested Citation

Bowers, Josh, Fundamental Fairness & the Path from Santobello to Padilla: A Response to Professor Bibas (September 7, 2011). California Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2011-31, Available at SSRN:

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

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