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"Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection"

By Douglas A. Berman

The title of this post is the title of this new piece by Professor Stephanos Bibas now available via SSRN. Here is the 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...continue to full post

Full post as published by Sentencing Law and Policy on October 23, 2010 (boomark / email).