November Responses


PENNumbra’s featured works are now available at This issue contains responses to an article from the print edition of the Law Review and a debate.

Stephanos Bibas, George Thomas, and Ronald Wright respond to Josh Bowers’ Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008). In his article, Professor Bowers makes the seemingly counterintuitive argument that the criminal justice system should make it easier for innocent defendants to enter guilty pleas and take advantage of plea bargains. Bowers maintains that, because most criminal defendants are recividivists in low-stakes cases, the arguments for reducing the process costs of taking a case to trial vastly outweigh the concerns of false guilty pleas and wrongful punishment. Thus, the system should view false guilty pleas as a legal fiction and require defense attorneys to advise and assist innocent defendants who wish to enter a false guilty plea to avoid these process costs.

Professor Bibas, in his Response, Exacerbating Injustice, argues that Professor Bowers’ argument “rests on [the] misguided premise” that “the job of plea rules and defense lawyers is simply to maximize the satisfaction of individual defendants’ preferences.” According to Bibas, false guilty pleas would serve to undermine “the public faith and confidence in the judicial system” and to impede both guilty defendants’ admissions of their own guilt and the healing benefits of closure for victims. Bibas concludes that our criminal justice system must remain morally committed to “exonerating the innocent, however inconsistant we are in pursuing that in practice.”

Professor Thomas, in his Response, Helping Defendants in High-Stakes Cases, deems Professor Bowers’ article “a breath of fresh air.” However, Thomas argues for an even more radical change of our system—where specially-appointed magistrates would “actively engage in a search for truth rather than being mere referees for adversaries.” These “screening magistrates” would screen out cases where defendants “are probably not guilty,” and then act as “plea regulators” for the cases that remain, proposing a charge and sentence that the defendant could either take or move on to a jury trial. Thomas believes that moving away from our current adversarial system in this way would “move us toward a model where protecting innocence is more important than advocacy.”

Professor Wright, in his Response, Guilty Pleas and Submarkets, criticizes Bowers’ focus on just recidivists in low-stakes cases. Instead of viewing “defendants” as one global market, Wright believes it would be better to “to evaluate and regulate the submarkets of criminal justice separately.” Furthermore, Wright notes that there are also submarkets among criminal prosecutors, depending on the organization of prosectuion offices around the country. Wright thus suggests that the solution lies in targeted regulation that is sensitive to these submarkets, and not global change, as “the simple microeconomic model of buyers and sellers in the market for guilty pleas has taken us about as far as it can go”

Finally, in First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest, Professors Paul E. McGreal and James J. Alfini explore the permissible limits on judicial campaign speech in light of the Supreme Court’s First Amendment Campaign Speech precedent.. Professor McGreal argues that, as long as a judge’s campaign speech expresses an accepted form of legal analysis, that speech may not be regulated without violating the judicial candidate’s First Amendment rights. Dean Alfini, on the other hand, would require a more stringent regulation of campaign speech and would base such restrictions on the ABA’s formulation that judges may not “make pledges, promises, or commitments” in their campaign that would compromise their impartiality.

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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