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Full-Text Articles in Law
Plea Bargaining After Frye And Lafler, A Real Problem In Search Of A Reasonable And Practical Solution (Meeting The Challenges Of Frye And Lafler) [Keynote Address], W. Louis Sands
Duquesne Law Review
No abstract provided.
Plea Bargaining Is A Shadow Market [Introduction], Frank H. Easterbrook
Plea Bargaining Is A Shadow Market [Introduction], Frank H. Easterbrook
Duquesne Law Review
No abstract provided.
The Indirect Potential Of Lafler And Frye, Wesley Macneil Oliver
The Indirect Potential Of Lafler And Frye, Wesley Macneil Oliver
Duquesne Law Review
There are a range of opinions about the potential impact of the Supreme Court's latest opinions. My view of the potential of these cases to create some meaningful limit on the presently unregulated world of plea bargaining is probably the most optimistic, or radical, of anyone who participated in this conference. Missouri v. Frye and Lafler v. Cooper, in my view, hold the potential to improve the quality of representation defendants receive in the negotiation process and may lead judges to create a set of advisory guidelines for the exercise of prosecutorial discretion. The direct impact of these opinions …
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
Duquesne Law Review
I am delighted that Professor Wes Oliver and the Duquesne University School of Law are hosting this timely and important symposium on plea-bargaining after Lafler and Frye and this panel on what it takes to make defense counsel effective negotiators. Those decisions have provoked a long-overdue conversation about what kind of defense lawyering is effective and constitutionally required in a world of guilty pleas. Though the Court recognized decades ago, in Hill v. Lockhart, that ineffective assistance could taint guilty pleas, it is only now working through what that principle must mean and how to implement it in practice.
Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Frye, Nancy J. King
Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Frye, Nancy J. King
Duquesne Law Review
In a criminal justice system where procedural rights are freely traded for sentencing and charging concessions, each heralded decision of the Supreme Court enforcing or expanding a right of the accused produces yet another bargaining chip for the defense. As rights expand, so do waivers of the opportunity to enforce those rights on review. As one court stated, the government "enters into plea agreements to avoid costly litigation, not to postpone it." It was, then, unsurprising when, amid the accolades for the Court's decisions in Missouri v. Frye and Lafler v. Cooper, one exprosecutor suggested that defendants should have …
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
Duquesne Law Review
"[T]oo long, too expensive, and unpredictable." That is how Justice Scalia described "the ordinary criminal process" in a dissenting opinion joined by Chief Justice Roberts and Justice Thomas. Justice Scalia blamed the length, cost, and unpredictability of criminal proceedings not on the intrinsic nature of adjudication but on the constitutional jurisprudence underlying the criminal process, which he depicted as unnecessarily intricate and unduly burdensome. One might infer, given their understanding, that these Justices will not only interpret constitutional provisions narrowly in criminal cases but, given the chance, will trim back constitutional protections that they believe earlier decisions benightedly …
Putting The Trial Penalty On Trial, David S. Abrams
Putting The Trial Penalty On Trial, David S. Abrams
Duquesne Law Review
The "trial penalty" is a concept widely accepted by all the major actors in the criminal justice system: defendants, prosecutors, defense attorneys, court employees, and judges. The notion is that defendants receive longer sentences at trial than they would have through plea bargain, often substantially longer. The concept is intuitive: longer sentences are necessary in order to induce settlements and without a high settlement rate it would be impossible for courts as currently structured to sustain their immense caseload.
Do Procedural Claims Drive Out Merits Claims In Plea Bargaining?: A Comment On The Work Of The Late Professor William Stuntz, Gabriel J. Chin
Do Procedural Claims Drive Out Merits Claims In Plea Bargaining?: A Comment On The Work Of The Late Professor William Stuntz, Gabriel J. Chin
Duquesne Law Review
In his now classic body of work on plea bargaining, the late William Stuntz answered one the of the most disturbing challenges to the institution of plea bargaining: That it promotes conviction of the innocent by putting them to the torturous choice of pleading guilty to a crime they did not commit, or going to trial and facing the possibility of conviction, and thus even more time. Stuntz, like other scholars, persuasively contended that denying innocent defendants the opportunity for a plea bargain could only make them worse off because they would be forced to go to trial where they …
Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler
Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler
Duquesne Law Review
Imagine that you are on death row, and imagine that the incompetence of your lawyer has put you there. A witness at your trial testified that you waited at the wheel of a getaway car while two accomplices robbed a liquor store and one of them shot and killed the clerk. Shortly after your arrest, the prosecutor offered to permit you and your co-defendants to plead guilty to voluntary manslaughter and armed robbery. This offer would have limited your sentence to 25 years. Your co-defendants, including the alleged triggerman, accepted the offer. You would have accepted the offer too if …
Plea Bargaining In The Shadow Of The Constitution, Richard L. Lippke
Plea Bargaining In The Shadow Of The Constitution, Richard L. Lippke
Duquesne Law Review
In two recent decisions, the United States Supreme Court moved further in the direction of at least limited constitutionalization of plea bargaining. A majority on the Court held that criminal defendants must be given "effective assistance" by their attorneys as they contemplate whether to waive important legal rights and enter guilty pleas. Fortunately for the Court, the defense attorneys in the two cases had almost comically failed to do their jobs and thus the majority could, as it acknowledged, avoid addressing in any very thorough way the parameters of effective assistance in the plea bargaining context. In spite of this, …