Law Commons^™

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 …

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

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The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

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This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …