Stephanos Bibas

Integrating Remorse and Apology into Criminal Procedure

Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendants badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal laws substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities.The narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology serve only as poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology are valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community.Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal laws substantive moral goals.

Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendants statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that jury trials are the norm. In the real world, however, fewer than four percent of defendants go to trial before a jury; the vast majority plead guilty. This Article analyzes Apprendi as a case study in the shortcomings of trial-centered law and scholarship. This benign-seeming trial right will have unintended and perverse consequences in the real world of guilty pleas and Sentencing Guidelines. Apprendis rule will deprive many defendants who plead guilty of sentencing hearings, promote prosecutorial arbitrariness, and undercut legislative guidance of unelected sentencing commissions. Instead of creating new trial rights that defendants cannot afford to exercise, the Court and scholars should instead focus on regulating guilty pleas and sentencing hearings. This Article proposes alternative solutions better adapted to the real world of guilty pleas and sentencing, such as preplea notice of sentence enhancements and procedural protections at sentencing. This Article concludes by suggesting more broadly how criminal procedure should move beyond its preoccupation with trials to improve the real world of guilty pleas and sentencing.

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

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.

Apprendi and the Dynamics of Guilty Pleas

Professors Nancy King and Susan Klein devote most of their Commentary to a single subsection of my recent article.1 My entire article argued that Apprendi v. New Jersey2 exemplified criminal procedures misguided focus on jury trials at the expense of the real world of guilty pleas. Professors King and Klein focus on my narrower point that Apprendi undercuts due process by making it harder for many defendants to secure judicial hearings after they plead guilty. In summary, I argued that defendants used to be able to get the massive benefits of pleading guilty while still enjoying enhancement hearings at sentencing. Now that enhancements are issues for jury trials, defendants cannot gain both benefits. They must either allocute to and concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement issues and forfeit these plea benefits. Professors King and Klein claim that defendants face no additional pressure to give up hearings under this scheme. But they fail to see how prosecutorial and judicial behavior reinforce the pressures to plead guilty, making hearings harder to secure for many defendants.