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

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


Padilla v. Kentucky was a watershed in the U.S. Supreme Court’s turn to regulating plea bargaining. For decades, the Court had 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 halfway. Not until Padilla last year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related collateral civil consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’s 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.

 

PDF

More in this Issue

The Power of Procedure: The Critical Role of Minority Intervention in the Wake of Ricci v. DeStefano

Federal Rule of Civil Procedure (“FRCP”) 24(a)(2) permits third parties whose interests are not adequately represented by existing parties to intervene in ongoing litigation to protect those interests. This Comment considers whether intervention can and should be used as a tool for nonparty racial minorities in the fight for social justice. Ultimately, it posits that […]

Federalism and the Taxing Power

Scholars and courts recognize that the federal government uses its broad spending power to enlist states in achieving federal goals, thereby expanding the federal government’s reach beyond the areas enumerated for it in the Constitution. Previously underappreciated, however, is that the federal government can achieve similar ends-it can regulate the states and private parties-through its […]

Fact and Fiction about Facial Challenges

The Justices of the U.S. Supreme Court have frequently insisted that “facial challenges” to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on […]