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

Abstract

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 exprosecutors 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.