Will Supreme Court Rulings Clean Up Messy Plea-Bargain Practices?


The New York Times follows up on this week’s Supreme Court rulings that expand the supervisory reach of judges to include plea bargaining, a process conducted with so little oversight that law Prof. Stephanos Bibas of the University of Pennsylvania has compared it to a Turkish bazaar. Legal scholars used words like “huge” and “bold” to describe the rulings. “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next few years,” said law Prof. Ronald Wright of Wake Forest University.

Justice Antonin Scalia excoriated the court for elevating the “necessary evil” of plea bargains into “a constitutional entitlement.” Still, it was difficult to gauge what concrete effects the rulings would have on everyday legal practice. Bibas said that they would probably lead to a flurry of postconviction filings by people who believed their lawyers were at fault for their failure to get a better deal. “But very few of them will succeed,” he said. “Courts are very good at tossing these cases out.” He said the cases might result in requirements that plea offers be put in writing, which already is the case in Arizona. While many states require plea agreements to be written and presented before a judge, plea offers are often verbal and made in informal settings. Said Bibas: “I’m not a big fan of plea bargaining, but the least we can do is to clean up the messy way it’s practiced.”

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