Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops

Authors

Stephanos Bibas, University of Pennsylvania Carey Law SchoolFollow

Document Type

Article

Publication Date

2016

Abstract

American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.

Keywords

Criminal procedure, adversarial and inquisitorial process, prosecutors, criminal defense, transparency, procedural justice, legitimacy, Alford plea, colloquy, allocution

Publication Title

William & Mary Law Review

Publication Citation

57 Wm. & Mary L. Rev. 1055 (2016)

Repository Citation

Bibas, Stephanos, "Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops" (2016). All Faculty Scholarship. 1644.
https://scholarship.law.upenn.edu/faculty_scholarship/1644