Law Commons^™

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

Fairly Pricing Guilty Pleas, Anne R. Traum

Scholarly Works

Building on Professor Andrew Taslitz’s work, this article explores how Fair Price Theory can help us analyze the fairness of guilty pleas. In Judging Jena’s D.A., Professor Taslitz used Fair Price Theory to explore how prosecutors could strive to achieve fairness and reduce the perception of racial stigma. He used Fair Price Theory to propose a system of prosecutorial ethics that takes into account racial stigma. This article considers how Fair Price Theory challenges courts to analyze guilty pleas differently, by focusing on price without relying on the agency of prosecutors. Under current doctrine, a court examines whether the …

Revisiting The Mansions And Gatehouses Of Criminal Procedure: Reflections On Yale Kamisar's Famous Essay, William T. Pizzi

Publications

In 1965, Yale Kamisar published a now-famous essay entitled, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to... to make his case that the Court needed to take action to protect citizens in interrogation rooms, Kamisar used the powerful metaphors of the gatehouse and the mansion to contrast the treatment received in interrogation rooms in the back of police stations with the way defendants were treated when they arrived at courthouses where the power of the state was restricted and they had strong constitutional protections.

On its 50th anniversary since publication, …

A First Look At The Plea Deal Experiences Of Juveniles Tried In Adult Court, Tarika Daftary-Kapur, Tina Zottoli

Department of Justice Studies Faculty Scholarship and Creative Works

While there is a large body of research on the legal capacities of adolescents, this research largely has neglected the plea-deal context. To learn about adolescents’ understanding of the plea process and their appreciation of the short- and long-term consequences of accepting a plea deal, we conducted interviews with 40 juveniles who were offered plea deals in adult criminal court. Participants displayed a limited understanding of the plea process were not fully aware of their legal options and appeared to be overly influenced by the short-term benefits associated with accepting their plea deals. Limited contact with attorneys may have contributed …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

The Quest For Finality: Five Stories Of White Collar Criminal Prosecution, Lucian E. Dervan

Law Faculty Scholarship

In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent. Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences …

Limits On The Search For Truth In Criminal Procedure: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Across diverse legal traditions, the search for truth is a basic function of the criminal process. Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict. Yet while truthseeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.

Different jurisdictions around the world show different preferences with respect to the tradeoffs between these values and the search for truth …

Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum

Scholarly Works

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …

The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …

Marked!, Aya Gruber

Publications

No abstract provided.

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas

All Faculty Scholarship

This essay, written for a symposium at Duquesne Law School entitled Plea Bargaining After Lafler and Frye, offers thoughts on how lawyers could learn from doctors’ experience in catching and preventing medical errors and aviation experts’ learning from airplane crashes and near misses. It also expresses skepticism about the efficacy of judges’ ex post review of ineffective assistance of counsel, but holds out more hope that public-defender organizations, bar associations, probation officers, sentencing judges, sentencing commissions, and line and supervisory prosecutors can do much more to prevent misunderstanding and remedy ineffective bargaining advice in the first place.

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Scholarly Works

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …

Bulk Misdemeanor Justice, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand …

White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian E. Dervan

Law Faculty Scholarship

Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available …

Pleading Innocents: Laboratory Evidence Of Plea Bargaining's Innocence Problem, Vanessa Edkins, Lucian E. Dervan

Law Faculty Scholarship

We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an overall preference (56% across conditions) for accepting a plea deal. Implications and future directions are discussed.

The Innocent Defendant’S Dilemma: An Innovative Empirical Study Of Plea Bargaining’S Innocence Problem, Lucian E. Dervan, Vanessa Edkins

Law Faculty Scholarship

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King

Vanderbilt Law School Faculty Publications

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit …

Effective Remedies For Ineffective Assistance, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts …

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

All Faculty Scholarship

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 …

Taming Negotiated Justice, Stephanos Bibas

All Faculty Scholarship

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 …

Preplea Disclosure Of Impeachment Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Response to R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429 (2011)

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Lafler V. Cooper And Aedpa, Nancy J. King

Vanderbilt Law School Faculty Publications

The Supreme Court in Missouri v. Frye1 and Lafler v. Cooper2 broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways. Lafler presented the Supreme Court with an unusual opportunity to declare new doctrine on habeas review

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …