Criminal Procedure Commons^™

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

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The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

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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

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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.

Bulk Misdemeanor Justice, Stephanos Bibas

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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 …

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

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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 …

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

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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

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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 …

An Honest Approach To Plea Bargaining, Steven P. Grossman

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In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.