Plea Bargaining in the Shadow of the Constitution

In two recent decisions, the United States Supreme Court moved further in the direction of at least limited constitutionalization of plea bargaining. A majority on the Court held that criminal defendants must be given effective assistance by their attorneys as they contemplate whether to waive important legal rights and enter guilty pleas. Fortunately for the Court, the defense attorneys in the two cases had almost comically failed to do their jobs and thus the majority could, as it acknowledged, avoid addressing in any very thorough way the parameters of effective assistance in the plea bargaining context. In spite of this, the Court struggled with identifying a remedy for defendants whose attorneys falter, a point made quite effectively by the dissenting justices. Given the fluidity of plea negotiations, it was difficult for the Court to say with any certainty what sentences the defendants would have received if not for the missteps of their attorneys. The Court assigned the task of discerning the remedy to the lower courts, a solution that, as Justice Scalia caustically noted, would require those courts to engage in considerable guesswork. Worse than this, the majority conceded that the lower courts might determine that no remedy whatsoever is necessary, though the defendants had not received effective assistance during their plea negotiations

The Nature of Retributive Justice and Its Demands on the State

The enterprise of state punishment requires the use of limited resources for which there are other competitors, such as national defense, market regulation, and social welfare. How resource-demanding retributive justice will turn out to be depends on how retributivists answer a series of questions concerning the theory’s structure. After elaborating these questions and the varieties of retributive justice that answers to them might generate, I consider the resource demands of retributive justice in the context of competing theories of distributive justice. Various tensions and outright conflicts between the pursuit of retributive and distributive justice are then explored