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The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
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This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly different …
Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas
Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas
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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 …
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
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Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …