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Full-Text Articles in Law

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas Nov 2012

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

Faculty Scholarship at Penn Law

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed that ...


Taming Negotiated Justice, Stephanos Bibas Jun 2012

Taming Negotiated Justice, Stephanos Bibas

Faculty Scholarship at Penn Law

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed ...


Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels Jan 2012

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels

Faculty Scholarship at Penn Law

The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).

XPFs, the subject of this Article, include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the ...


Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson Jan 2012

Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


Rehabilitating Retributivism, Mitchell N. Berman Jan 2012

Rehabilitating Retributivism, Mitchell N. Berman

Faculty Scholarship at Penn Law

This review essay of Victor Tadros’s new book, ‘‘The Ends of Harm: The Moral Foundations of Criminal Law,’’ responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, what does it mean for them to deserve it? That is, what is the normative force or significance of valid ...


The Machinery Of Criminal Justice, Stephanos Bibas Jan 2012

The Machinery Of Criminal Justice, Stephanos Bibas

Faculty Scholarship at Penn Law

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased ...


Introduction: Punishment And Culpability, Mitchell N. Berman Jan 2012

Introduction: Punishment And Culpability, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach Jan 2012

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.