Plea Bargaining and originalism

Let’s just stick with this Supreme Court theme today as I want to mention a really nice post Kevin Drum wrote last week about the Supreme Court’s surprising and surprisingly good decision to hold that a defendant’s right to decent legal representation extends to plea bargains:

Conservative Supreme Court justices really, really hate the idea that we live in the 21st century:

Defendants in criminal cases have a constitutional right to a competent lawyer’s advice when deciding whether to accept a plea bargain, the Supreme Court ruled, providing a significant expansion of rights that could have a broad impact on the justice system.

“Ours for the most part is a system of pleas, not a system of trials,” Justice Anthony M. Kennedy said for the majority in a pair of 5-4 decisions. Noting that about 97% of federal convictions and 94% of state convictions result from guilty pleas, Kennedy wrote that “in today’s criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for the defendant.”

The ruling drew a sharply worded dissent from Justice Antonin Scalia, who took the unusual step of expressing his disagreement in the courtroom….“Until today, no one has thought that there is a constitutional right to a plea bargain,” Scalia [said].

Well, there’s still no constitutional right to a plea bargain. It’s at the discretion of the prosecutor, the same as it’s always been. But Kennedy has this one right: in 1787, the “criminal prosecutions” mentioned in the Sixth Amendment were all jury trials. In 2012, virtually all criminal prosecutions are plea bargains. Like it or not, times have changed, and for the vast majority of defendants it’s the plea bargain that’s effectively their trial…

This case really seems to capture the bankruptcy of judicial originalism in a nutshell. Scalia and his fellow conservatives just can’t stand the idea that constitutional rights are necessarily going to evolve as the nature of society evolves. So they stamp their feet and pound their fists and insist that, by God, a trial is a trial even if only 3% of modern-day defendants ever actually get one. Their starry-eyed attachment to a gauzy vision of 18th-century virtue is puerile at best and actively malign at worst.

Couldn’t have said it better myself (actually quite sure of that, I love “puerile at best and actively malign at worst”).  Nice to see Kennedy on the right (i.e., left) side here.  I just really don’t get why so many conservatives seem so wedded to a “tough on crime” approach even in the face of actual injustice.  If you are offered a plea bargain and your attorney doesn’t even tell you about it, it’s pretty clear that you’ve not had competent representation.  That is, unless you live in Scalia’s world where there’s nice black and white clarity that all accused criminals are bad guys.  Once again, I utterly fail to see his much-purported judicial brilliance.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

2 Responses to Plea Bargaining and originalism

  1. Brett Bellmore says:

    This isn’t the bankruptcy of judicial originalism. It’s the bankruptcy of the modern ‘justice’ system, which has transformed trials into ordeals which are tantamount to punishment even if you’re acquitted. And become dependent on intimidating almost everybody into not exercising their right to one.

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