Regulating the plea-bargaining market: From Caveat emptor to consumer protection

California Law Review

Volumn 99, Issue 4, 2011, Pages 1117-1162

  Bibas, Stephanos ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 80052509715     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (204)

1. In 2004, of 582, 480 felony convictions in state courts, 95 percent resulted from guilty pleas. Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics Online, tbl.5.46.2004, http://www.albany.edu/sourcebook/pdf/t5462004.pdf. In fiscal year 2009, of 86, 798 criminal cases disposed of in federal district court by trial or plea (thus excluding dismissals), 96.4 percent were disposed of by pleas of guilty or nolo contendere.
2. at tbl.5.24.2009, http://www.albany.edu/sourcebook/pdf7t5242009.pdf. Though it is impossible to be sure, most of these pleas probably resulted from plea bargains.
3. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009).
4. As Chief Justice Burger remarked in a 1970 speech to the American Bar Association, even a small reduction in guilty-plea rates would have immense consequences. "A reduction from 90 per cent to 80 per cent in guilty pleas requires the assignment of twice the judicial manpower and facilities-judges, court reporters, bailiffs, clerks, jurors and courtrooms. A reduction to 70 per cent trebles this demand." Warren Burger, The State of the Judiciary-1970, 56 A.B.A. J. 929, 931 (1970).
5. Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.").
6. GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA (2003) (arguing that plea bargaining has grown inexorably to handle crushing caseloads).
7. Santobello v. New York, 404 U.S. 257, 260 (1971) (vacating and remanding because a prosecutor failed to honor an earlier prosecutor's commitment, as part of a plea bargain, to make no sentence recommendation).
8. Apprendi v. New Jersey, 530 U.S. 466, 488 (2000).
9. Blakely v. Washington, 542 U.S. 296, 310 (2004).
10. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1196-99 (1991).
11. Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph ofJustice Scalia, the Unlikely Friend of Criminal Defendants?, 94 GEO. L.J. 183 (2005).
12. United States v. Mezzanatto, 513 U.S. 196, 200-03 (1995) (adopting a presumption of waivability, and holding that defendants may waive rules that exclude from evidence statements made during plea negotiations).
13. Blackledge v. Allison, 431 U.S. 63, 71 (1977).
14. Santobello v. New York, 404 U.S. 257, 260 (1971).
15. Brady v. United States, 397 U.S. 742, 752 (1970).
16. Tumey v. Ohio, 273 U.S. 510 (1927) (forbidding judges to have direct monetary interests in the outcomes of cases).
17. Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding race discrimination in criminal jury selection).
18. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson to sex discrimination).
19. Brady v. Maryland, 373 U.S. 83 (1963) (exculpatory material).
20. Giglio v. United States, 405 U.S. 150 (1972) (impeachment material).
21. Crawford v. Washington, 541 U.S. 36 (2004) (forbidding the use at trial of testimonial hearsay by nontestifying declarants).
22. Bruton v. United States, 391 U.S. 123 (1968) (forbidding admission at joint trials of confessions implicating the accused by nontestifying codefendants).
23. Griffin v. California, 380 U.S. 609 (1965).
24. Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (reversing a criminal conviction because defective reasonable-doubt instruction permitted jury to convict based on insufficient proof).
25. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
26. Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (applying Apprendi to facts aggravating maxima under sentencing guidelines).
27. United States v. Broce, 488 U.S. 563, 575-76 (1989) (holding that a guilty plea barred a later double jeopardy claim that relied on additional evidence).
28. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (same, for claim of race discrimination in selecting grand jury).
29. McMann v. Richardson, 397 U.S. 759, 768-71 (1970) (same, for coerced-confession claim). A few types of claims are not automatically forfeited by a plea.
30. Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (double jeopardy claim).
31. Blackledge v. Perry, 417 U.S. 21, 30 (1974) (vindictive prosecutorial charging; describing these claims as exceptional because they undercut "the very power of the State" to charge the defendant).
32. Cowan v. Superior Court, 926 P.2d 438, 441-43 (Cal. 1996) (allowing waiver of statute of limitations).
33. People v. Allen, 658 N.E.2d 1012, 1014-15 (N.Y. 1995) (same, for double jeopardy).
34. People v. Seaberg, 541 N.E.2d 1022, 1024-26 (N.Y. 1989) (same, for waivers of the right to appeal).
35. Nancy J. King, Priceless Process: Non-Negotiable Features of Criminal Litigation, 47 UCLA L. REV. 113 (1999) (noting trend towards allowing waiver of all rights except constitutional claims that affect third parties). The Court has accelerated this trend by itself blessing plea-bargained waivers.
36. United States v. Mezzanatto, 513 U.S. 196, 200-02, 210 (1995) (adopting a presumption of waivability and enforcing a waiver of the inadmissibility of statements a defendant made during plea negotiations). The existence of appeal waivers, however, does not entirely explain the dearth of plea- bargaining case law. Defendants can enter conditional guilty pleas, expressly reserving their rights to appeal specified pretrial issues.
37. FED. R. CRIM. P. 11(a)(2). And it does not explain the paucity of case law on issues that go to the validity of the plea, such as the Ruiz issues of when and how prosecutors' Brady obligations attach.
38. Iowa v. Tovar, 541 U.S. 77, 81 (2004) (holding that, at guilty-plea colloquies, judges need not advise defendants of the specific risks of waiving counsel and proceeding pro se).
39. Boykin v. Alabama, 395 U.S. 238, 243 (1969) (holding that, to demonstrate that a guilty plea is voluntary, the record must reflect that the defendant affirmatively waived his rights to a jury trial and to confront his accusers, as well as his privilege against compelled self-incrimination).
40. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463 (2004).
41. FED. R. CRIM. P. 11. Rule 11 establishes the federal procedures for plea bargaining and has served as a model for many states.
42. HAW. R. PEN. P. 11.
43. TENN. R. CRIM. P. 11.
44. VT. R. CRIM. P. 11.
45. W. VA. R. CRIM. P. 11.
46. FED. R. CRIM. P. 11(b)(1), (b)(3).
47. FED. R. CRIM. P. 11(c)(1).
48. colo. REV. STAT. § (2006).
49. GA. UNIF. SUPER. Ct. R. 33.5(A). For cogent criticism of this judicial reticence,.
50. Albert W. Alschuler, The Trial Judge's Role in Plea Bargaining (pt. 1), 76 COLUM.L.REV. 1059, 1123-34(1976).
51. Anecdotal evidence suggests that judges do on occasion participate in plea bargaining, sometimes in violation of local rules. One study found that about a third of judges nationwide attended plea negotiations, most often reviewing the parties' recommendations but occasionally making their own. Where rules clearly forbade participation in plea bargaining, judges were much less likely to attend, but some still did. John Paul Ryan & James J. Alfini, Trial Judges' Participation in Plea Bargaining: An Empirical Perspective, 13 LAW & SOC'Y REV. 479, 484-90 (1979).
52. Allen Anderson, Judicial Participation in the Plea Negotiation Process: Some Frequencies and Disposing Factors, 10 HAMLINE J.L. & PUB. POL'Y 39, 43-49, 57 (1990) (reporting that "[j]udicial participation in the plea negotiation process, in varying forms, is widespread, " based on a study of North Carolina, which expressly authorizes judges to participate).
53. Frank Easterbrook has made this free-market argument powerfully several times. Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289, 309-17 (1983).
54. Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J. 1969, 1974-75 (1992).
55. Santobello v. New York, 404 U.S. 257, 260-61 (1971).
56. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).
57. The landmark approval of lawful threats as part of the rough-and-tumble of plea bargaining is Bordenkircher v. Hayes, 434 U.S. 357, 362-65. For a cogent critique of Bordenkircher's opening the floodgates to unfettered plea bargaining,.
58. William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in CRIMINAL PROCEDURE STORIES 351 (Carol Steiker ed., 2006).
59. Here and over the next several pages, I discuss more generally the Court's tacit assumptions for more than three decades, from the 1970s through the early 2000s. One cannot rigorously prove such generalizations, particularly when it comes to proving negatives, such as the Court's failure to advert to the realities of plea bargaining. For a concrete example, however, of an opinion that would have been written differently had the Court not made these assumptions and instead assessed plea bargaining more realistically, see my discussion of United States v. Ruiz. Infra Part II.
60. McMann v. Richardson, 397 U.S. 759, 769-71 (1970).
61. Libretti v. United States, 516 U.S. 29, 50-51 (1995) ("Apart from the small class of rights that require specific advice from the court under Rule 11(c), it is the responsibility of defense counsel to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo.").
62. Albert Alschuler's classic examination of defense lawyers remains the best study of their role in plea bargaining. Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179, 1180 (1975) (describing the assumption that defense counsel will adequately safeguard their clients' interests in plea bargaining as "often more romanticized than real").
63. Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2003 UTAH L. REV. 1.
64. Oren Bar-Gill & Oren Gazal Ayal, Plea Bargains Only for the Guilty, 49 J.L. & ECON. 353, 361-62 (2006) ("In most cases, key evidence, including the defendant's statement to the police and the identity of the main witnesses, is common knowledge. In many jurisdictions, law or prosecutorial practice guarantees that defendants receive the most significant information collected by the prosecution, thus minimizing private information on the prosecution side.").
65. Brady v. United States, 397 U.S. 742, 756-58 (1970) (treating the decision to plead guilty as "intelligently made" because it is based on "the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency").
66. North Carolina v. Alford, 400 U.S. 25, 37-39 (1970) (stressing that "[w]hether [Alford] realized or disbelieved his guilt, " upon his lawyer's advice he had rationally decided to plead guilty "[b]ecause of the overwhelming evidence against him").
67. Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1936-37 (1992) (stressing that defendant's knowledge of his own guilt gives him "a major piece of information that" the prosecutor lacks).
68. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case").
69. I have argued at length that the Court erred by writing criminal procedure decisions such as Apprendi for the 5 percent of cases that go to trial, heedless of how the parties would circumvent or pervert these rules in the 95 percent of cases that plead guilty. Stephanos Bibas, Judicial Facl-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097, 1148-51 (2001).
70. Brady v. United States, 397 U.S. 742, 757-58 (1970) (doubting that inducements to plead guilty "substantially increased the likelihood that" innocent defendants would plead guilty).
71. Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1064 (2010) (reporting that mentally ill, mentally retarded, and borderline mentally retarded defendants composed 43 percent of DNA exonerees who had falsely confessed; 65 percent of false confessors were mentally disabled, under eighteen at the time of the crime, or both).
72. Samuel R. Gross, Convicting the Innocent, 4 ANN. REV. L. & SOC. SCI. 173, 181 (2008) (discussing a study of 340 nonrandomly selected defendants who pled guilty, finding that 6 percent were later exonerated).
73. United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993) (Easterbrook, J.).
74. State v. Greuber, 165 P.3d 1185, 1190 (Utah 2007).
75. Bryan v. State, 134 S.W.3d 795, 802 (Mo. Ct. App. 2004) (finding no prejudice).
76. State v. Monroe, 757 So.2d 895, 898 (La. Ct. App. 2000) (same).
77. Bill Stuntz beautifully exposed this phenomenon in William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 534-38, 546-52 (2001).
78. Studying plea and conviction statistics across the second half of the twentieth century, Ronald Wright concludes that many federal defendants who would otherwise have been acquitted at trial have increasingly pleaded guilty instead. He blames this development in substantial part on increased prosecutorial power. Federal prosecutors, he notes, have become increasingly able to threaten large penalties for going to trial and to promise large rewards for pleading guilty. Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 84-86, 100-12, 129-37, 150-54(2005).
79. lawrence M. friedman, CRIME AND PUNISHMENT IN AMERICAN HISTORY 159-63, 304-06 (1993).
80. Kate Stith & Joś A. Cabranes, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 9-10, 18-21 (1998).
81. PAULA M. DlTTON & DORIS JAMES WILSON, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NCJ 170032, TRUTH IN SENTENCING IN STATES PRISONS 1, 3 (1999), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/tssp.pdf.
82. Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) (deportation).
83. Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. U. L. REV. 101 (2007) (sex offender residency restrictions).
84. J.E.B. v. Alabama ec rel. T.B., 511 U.S. 127 (1994).
85. Powers v. Ohio, 499 U.S. 400 (1991).
86. Batson v. Kentucky, 476 U.S. 79 (1986).
87. Crawford v. Washington, 541 U.S. 36 (2004).
88. Blakely v. Washington, 542 U.S. 296 (2004).
89. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
90. Shannon v. United States, 512 U.S. 573, 587 (1994) (reiterating "the rule against informing jurors of the consequences of their verdicts" and rejecting a proposed exception).
91. Hudson v. United States, 522 U.S. 93, 101-03 (1997).
92. Brady v. United States, 397 U.S. 742, 755 (1970).
93. FED. R. CRIM. P. 11 (b)(l)(H)-(M).
94. Padilla v. Kentucky, 130 S. Ct. 1473, 1478-80 (2010).
95. WAYNE A. LOGAN, KNOWLEDGE AS POWER: CRIMINAL REGISTRATION AND COMMUNITY NOTIFICATION LAWS IN AMERICA 49-84 (2009).
96. Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 IOWA L. REV. 119, 176, 179-80, 182-83 (2009).
97. Sex Laws: Unjust and Ineffective, ECONOMIST, Aug. 6, 2009, at 21 (giving example of a seventeen-year-old girl who had to register publicly as a sex offender for performing fellatio on a boy aged fifteen years, eleven months).
98. Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253 (2002).
99. Brady v. Maryland, 373 U.S. 83, 87 (1963).
100. Mooney v. Holohan, 294 U.S. 103 (1935).
101. Strickland v. Washington, 466 U.S. 668, 693 (1984) ("The government is not responsible for, and hence not able to prevent, [defense] attorney errors. . . . ").
102. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case. ...").
103. AM. BAR ASS'N, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE (2004).
104. Alan D. Bersin & Judith S. Feigin, The Rule of Law at the Margin: Reinventing Prosecution Policy in the Southern District of California, 12 GEO. IMMIGR. L.J. 285, 301 (1998).
105. United States v. Ruiz, 536 U.S. 622, 625 (2002).
106. Transcript of Oral Argument at 32-33, United States v. Ruiz, 536 U.S. 622 (2002) (No. 01-595) ("[I]t's impossible for [a defendant] not to know whether he was acting in self-defense." (Scalia, J.)). See http://www.oyez.org/cases/2000-2009/2001/2001-01-595/argument.
107. Id. at 34-35. See http://www.oyez.org/cases/2000-2009/2001/2001-01-595/ argument.
108. United States v. Ruiz, 536 U.S. 622, 633 (2002).
109. The Court touched on them only in passing in 2004 in Blakely. There, Justice Breyer worried about how the Court's jury-trial guarantee for sentencing facts would play out in practice, given the prevalence of plea bargaining. Blakely v. Washington, 542 U.S. 296, 337-38 (2004).
110. at 312. In 2005, the Court held that defendants who plead guilty need appointed lawyers to help them navigate appellate complexities, but did not express a broader appreciation of plea bargaining. Halbert v. Michigan, 545 U.S. 605 (2005).
111. Padilia v. Kentucky, 130 S. Ct. 1473, 1477-78 (2010) (internal quotation marks omitted).
112. State v. Quintero Morelos, 137 P.3d 114, 116, 119 (Wash. Ct. App. 2006).
113. Norton Tooby & Joseph Rollin, CRIMINAL DEFENSE OF IMMIGRANTS §10.1 (4th ed. 2007).
114. Strickland v. Washington, 466 U.S. 668, 686-87 (1984) (applying effective-assistance- of-counsel test to capital sentencing proceedings, while leaving open whether the same test would apply equally at noncapital sentencing).
115. Brady v. Maryland, 373 U.S. 83, 87-88 (1963) (defining, in the context of a capital case, material that prosecutors must disclose to defendants as evidence that would tend either to exculpate the defendant or to reduce the penalty).
116. Sawyer v. Whitley, 505 U.S. 333, 345 (1992) (defining capital defendants as "innocent of the death penalty" for purposes of habeas corpus exception wherever they can show innocence of the capital crime, or that there was no required aggravating factor, or that another requirement for death eligibility had not been met).
117. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
118. Padilia v. Kentucky, 130 S. Ct. 1473, 1484 (2010) (quoting Libretti v. United States, 516 U.S. 29, 50-51 (1995)).
119. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Though the Court did not consider the possibility of two alternative possible plea bargains, its binary framing of plea versus trial appeared to foreclose such prejudice claims.
120. Premo v. Moore, 131 S. Ct. 733, 743, 745 (2011) (applying Hill's standard, that an error must have affected a defendant's decision to plead guilty instead of going to trial, to bar a claim that a defense lawyer should have obtained a better plea bargain, though Premo arose in the context of deferential review of a state- court decision on habeas corpus based on what standard was clearly established).
121. Lafler v. Cooper, 376 F. App'x 563 (6th Cir. 2010), cert, granted, 131 S. Ct. 856 (U.S. Jan. 7, 2011) (No. 10-209).
122. Missouri v. Frye, 311 S.W.3d 350 (Mo. Ct. App. 2010), cert, granted, 131 S. Ct. 856 (U.S. Jan. 7, 2011) (No. 10-444).
123. Compare United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993) (Easterbrook, J.) (rejecting the possibility of prejudice),.
124. State v. Greuber, 165 P.3d 1185, 1190 (Utah 2007) (same).
125. Bryan v. State, 134 S.W.3d 795, 802-04 (Mo. Ct. App. 2004) (same).
126. State v. Monroe, 757 So. 2d 895, 898 (La. Ct. App. 2000) (same).
127. Williams v. Jones, 571 F.3d 1086, 1091-92 (10th Cir. 2009) (per curiam) (finding prejudice), reh'g denied, 583 F.3d 1254 (10th Cir. 2009).
128. Commonwealth v. Mahar, 809 N.E.2d 989, 993 (Mass. 2004) (same).
129. MILTON HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS 90, 120-21 (1977) (finding, in a qualitative empirical study before the advent of sentencing guidelines, that defense lawyers develop confidence in their ability to predict plea-bargained outcomes and learn to cite prior dispositions to prosecutors, establishing going rates for particular crimes).
130. United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir. 1996) (declining to find defense lawyer ineffective for mistakenly calculating sentencing guidelines range as 46 to 57 months, instead of 262 to 327 months, because it was not clear whether the lawyer had failed to investigate and appreciate the implications of a past parole revocation).
131. FED. R. CRIM. P. 11(b).
132. FED. R. CRIM. P. 11 (c)( 1 )(C).
133. FED. R. CRIM. P. 11(c)(1)(B), (3)(B).
134. Benjamin L. Coleman, In Defense of Hopper: Raising the Burden of Proof for Dramatic Increases Under the Guidelines, 12 FED. SENT'G REP. 225, 226-27 (2000) (reporting author's personal observation that "it is rare for a probation officer to conduct an independent investigation of the offense conduct, such as reviewing transcripts, interviewing witnesses, or inspecting a crime scene").
135. Probation Officers Advisory Group Survey, 8 FED. SENT'G REP. 303, 305-06 (1996).
136. Padilia v. Kentucky, 130 S. Ct. 1473, 1496 n.l (2010) (Scalia, J., dissenting).
137. Transcript of Oral Argument at 16, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (question by Justice Scalia). While Justice Scalia did not decide the point, he implied that neither defense lawyers nor judges must advise about collateral consequences to ensure that pleas are knowing and voluntary.
138. Libretti v. United States, 516 U.S. 29, 50 (1995).
139. Padilia, 130 S. Ct. at 1486 (majority opinion) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
140. -397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'don other grounds, 356 U.S. 26 (1958) (per curiam)).
141. McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
142. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985) (quoting this language from McMann and applying it to guilty-plea context).
143. Strickland v. Washington, 466 U.S. 668, 688 (1984).
144. Padilia v. Kentucky, 130 S. Ct. 1473, 1482 (2010).
145. Transcript of Oral Argument at 26-28, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (questions by Breyer, J.) (stressing that Strickland's reliance on "prevailing professional norms" defies reduction to a simple rule forbidding misadvice or permitting nonadvice).
146. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1857-65 (1994).
147. Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625, 640-45 (1986).
148. Rompilla v. Beard, 545 U.S. 374, 387 (2005).
149. Wiggins v. Smith, 539 U.S. 510, 524 (2003).
150. Williams v. Taylor, 529 U.S. 362, 396 (2000).
151. John H. Blume & Stacey D. Neumann, "It's Like Deja Vu All Over Again ".
152. Williams v. Taylor, Wiggins v. Smith, Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel, 34 AM. J. CRIM. L. 127 (2007).
153. Robert M.A. Johnson, Message from the President, PROSECUTOR, May-June 2001, at 5.
154. Transcript of Oral Argument at 8, 13, 31, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (questions of Kennedy, J.).
155. Transcript of Oral Argument at 8, 31, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (distinguishing courts' Rule 11 warnings from lawyers' Sixth Amendment duties to advise).
156. Stephen J. Schulhofer, Criminal Justice Discretion as a Regulatory System, 17 J. LEGAL STUD. 43, 58-59 (1988) (noting how much worse agency-cost problems are in plea bargaining because of its low visibility and lack of reputational sanctions for poor performance).
157. Hill v. Lockhart, 474 U.S. 52 (1985).
158. Strickland v. Washington, 466 U.S. 668, 685-86 (1984).
159. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Strickland, 466 U.S. at 690.
160. Libretti v. United States, 516 U.S. 29, 50-51 (1995).
161. Transcript of Oral Argument at 10, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (questions of Alito, J.).
162. Transcript of Oral Argument at 35-37, Padilia v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651) (questions of Sotomayor, J.).
163. That tentative assessment may become clearer in future cases if, for example, the Court confronts the buying of cooperator testimony in exchange for leniency. One could imagine Justices Alito and Sotomayor debating the need to crack the mob's code of silence versus the proven risk of false testimony. A recent petition for certiorari was a missed opportunity for just such a debate: it asked the Supreme Court to consider the constitutionality of cooperation agreements that require cooperating witnesses to testify consistently with their prior statements in order to earn leniency. Petition for Writ of Certiorari at i, Bannister v. Illinois, No. 09-1576, cert, denied, 131 S. Ct. 638 (2010).
164. ARISTOTLE, NICOMACHEAN ETHICS 17 (F.H. Peters trans., C. Kegan Paul & Co. 1881) ("If one swallow or one fine day does not make a spring, neither does one day or any small space of time make a blessed or happy man."). English translations often substitute "summer" for the original "spring" in this proverb.
165. FED. R. CRIM. P. 11 & Advisory Committee Note (1974) (citing Brady and Santobello's approval of plea bargaining as justification for bringing plea bargains out into the open and regulating them in new subsection (e), which has since been renumbered as (c)).
166. Brady v. United States, 397 U.S. 742, 752-53 (1970).
167. Santobello v. New York, 404 U.S. 257, 260 (1971).
168. Compare Boykin v. Alabama, 395 U.S. 238, 243 (1969) (requiring affirmative waiver on the record of the privilege against self-incrimination and the rights to jury trial and to confront one's accusers).
169. FED. R. CRIM. P. 11(b)(1) (requiring warnings not only about the three rights required by Boykin but also about the rights to plead not guilty, testify, counsel, and compulsory process, as well as the danger of prosecution for peijury, the existence of any appeal waiver, the various penalties, and the existence of sentencing guidelines).
170. FED. R. CRIM. P. 11(b). Likewise, the discovery obligations of Rule 16 and the Jencks Act go well beyond Brady v. Maryland's constitutional minimum. Compare 18 U.S.C. § (2006) (requiring disclosure of witnesses' prior statements at trial).
171. FED. R. CRIM. P. 16 (requiring a series of disclosures of inculpatory evidence upon request of the defendant).
172. Brady v. Maryland, 373 U.S. 83, 87 (1963) (recognizing defendant's due process right to disclosure of exculpatory evidence that is material to guilt or punishment).
173. Unfair Contract Terms Act, 1977, c. 50 (U.K.).
174. Truth in Lending Act, 15 U.S.C. §§ 1601-1614 (2006). Regulation Z, implementing the statute, is codified at 12 C.F.R. § 226 (2011).
175. Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (2006). The Federal Trade Commission's regulations implementing the act are codified at 16 C.F.R. § 700 (2011).
176. REVISED UNIF. DECEPTIVE TRADE PRACTICES ACT (1966).
177. Federal Trade Commission Act of 1914, 15 U.S.C. § 57a (2006) (authorizing the FTC to make rules forbidding unfair or deceptive acts or practices).
178. State v. Thrift, 440 S.E.2d 341, 348 (S.C. 1994) (holding that "oral [plea] agreements are perfectly enforceable").
179. Hannah Faye Chua et al., Risk Avoidance: Graphs Versus Numbers, 34 MEMORY & COGNITION 399, 407 (2006).
180. Ellen Peters et al., Numeracy Skill and the Communication, Comprehension, and Use of Risk-Benefit Information, 26 HEALTH AFF. 741, 744-46 (2007).
181. Isaac M. Lipkus & J. G. Hollands, The Visual Communication of Risk, 25 J. NAT'L CANCER INST. MONOGRAPHS 149, 159-160 (1999).
182. Paul Slovic et al, Affect, Risk, and Decision Making, 24 HEALTH PSYCHOL. S35, S37-S38 (2006).
183. Amiram Elwork et al., Toward Understandable Jury Instructions, 65 JUDICATURE 432, 434-39 (1982).
184. Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 B.Y.U. L. REV. 601, 606, 614-18.
185. Walter W. Steele Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C. L. REV. 77, 79-93 (1988) (summarizing empirical studies).
186. David U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 JUDICATURE 478, 480-83 (1976).
187. People v. Fiumefreddo, 626 N.E.2d 646, 650-53 (N.Y. 1993) (scrutinizing carefully but approving deal in which adult daughter pleaded guilty to murder in exchange for a light sentence for her father).
188. Bruce A. Green, "Package " Plea Bargaining and the Prosecutor's Duty of Good Faith, 25 CRIM. L. BULL. 507 (1989) (scrutinizing the ethical problems posed by package plea bargains).
189. State v. Danh, 516 N.W.2d 539, 542-13 (Minn. 1994) (requiring disclosure by prosecutors and careful colloquy by trial courts on package-deal terms of plea agreements).
190. Richard h. Thaler & Cass R. Sunstein, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS 250-51 (2008) (giving as examples cooling-off periods for high-pressure door-to-door sales and also mandatory waiting periods for divorces).
191. restatement (second) of contracts § (1981) ("In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom the writing otherwise proceeds.").
192. Some courts already apply the contra proferentem canon to plea agreements. United States v. Gebbie, 294 F.3d 540, 552 (3d Cir. 2002) (summarizing cases). More recently, however, courts have been treating that canon in private litigation, and the analogous rule of lenity in criminal litigation, as last-resort tiebreakers and not as weighty independent considerations.
193. Edward J. Imwinkelried, Forensic Science: Scientific Evidence-and Statutes, 43 CRIM. L. BULL. 739, 753 (2007).
194. United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991). Though the absence of a Pimentel letter would not necessitate reversal, the presence of one would create a safe harbor against claims of misunderstanding or misadvice about Guidelines calculations.
195. AM. BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICE: SENTENCING 18-5.15, 18-516 (3d ed. 1994).
196. The literature on the topic is far too vast to catalogue here, and there is significant debate about whether penalty default rules exist or differ from those based on the parties' hypothetical intents. The seminal article on the topic is Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989).
197. United States v. Guevara, 941 F.2d 1299, 1299 (4th Cir. 1991) (upholding an explicit waiver of a defendant's "right to appeal her sentence [under 18 U.S.C. § 3742(a)] or on any" other grounds).
198. COMM. ON SECOND CIRCUIT COURTS, FED. BAR COUNCIL, PROFFER, PLEA AND COOPERATION AGREEMENTS IN THE SECOND CIRCUIT at C-4, C-14, C-15, C-31, C-36, C-62 (2003) (reprinting standard-form plea agreements used by the U.S. Attorney's Offices for the District of Connecticut and the Northern, Southern, Eastern, and Western Districts of New York).
199. AM. BAR ASS'N, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS 19-21 (3d ed. 2004) (calling for jurisdictions to compile all collateral consequences).
200. UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT § (2009) (same).
201. Strickland v. Washington, 466 U.S. 668, 688-89, 696 (1984).
202. Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 UTAH L. REV. 1, 5-6.
203. Atul Gawande, THE CHECKLIST MANIFESTO: HOW TO GET THINGS RIGHT (2009).
204. Padilia v. Kentucky, 130 S. Ct. 1473, 1496-97 (2010) (Scalia, J., dissenting).