Document Type
Article
Publication Date
1-1-2011
Abstract
Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.
Keywords
Criminal law and procedure, criminal sentencing law and policy, pleas, regulation of the substantive calculus of plea bargaining, acceptance of a new norm
Publication Title
California Law Review
Repository Citation
Bibas, Stephanos, "Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection" (2011). All Faculty Scholarship. 330.
https://scholarship.law.upenn.edu/faculty_scholarship/330
Included in
Constitutional Law Commons, Criminal Law Commons, Criminology Commons, Public Law and Legal Theory Commons, Public Policy Commons
Publication Citation
99 Cal. L. Rev. 1117 (2011).