As we await the high point of the term, the PPACA orals, some other matters of note continue to take place.
Scalia dissented from the bench today respecting two opinions, written by Kennedy (joined by the "liberals"), providing protections against ineffective counsel in respect to plea bargains. There were various complications involved in the case including proper application of habeas and the "broken egg" problem (a pre-trial plea bargain based on various things that no longer are present, including avoiding trial), a point focused on by Alito's separate dissent.* And, the reach of the rulings are unclear given certain limits set forth and leaving lower courts much discretion to unscramble those eggs as they deem fit.
Of primary importance is that the majority realized that nearly all prosecutions are plea bargains, so it is important to apply due process rules to the procedures. Scalia [in a section not joined by Roberts; Alito dissents separately) goes all holier than thou:
Scalia is the one with a cheap view of criminal justice here. Four justices, including the Chief Justice, puts forth a limited view of the right to counsel. It rejects the reality set forth in the majority that it isn't just there to ensure the trial itself is fair and the person is convicted correctly in that sense. The right to a lawyer is one that is important as a whole. That's why Miranda rights speak of a "right to a lawyer" even before you step into a courtroom. Real life is not the pretend version of the dissent, one where one might imagine liberty and property taken away only after a trial. Often, the key moments are elsewhere, including when you surrender your rights via a plea bargain.
Four justices wish you to believe that the mere form of a "full and fair trial" is all you need, though one the majority keeps on trying to make "too long, too expensive, and unpredictable" [ironically, a core reason for plea bargaining is to avoid this sort of thing] per their misguided attempts at "perfection," which defense lawyers will be surprised to learn about after the limits put forth since the days of the Burger Court. The state sets up plea bargaining as THE major means to dispose of cases. It has responsibilities to ensure it is done right. If it wants, it need not use it, but as noted above, good luck with that. As with illegal confessions obtained in the station-house long behind that trial which can taint that conviction, even if the person is factually guilty and the jury so holds, mishandling plea bargaining -- which can result in (gambling or not) significant less time in prison and at times escape from death row -- taints the judgment.
If plea bargaining is so horrible, the path is not to avoid it as distasteful, but address its application. The dissent doesn't seem to want to end the practice. It wants to avoid dirtying its hands in trying to find some sort of rough justice. The important aspect of the case to me seems to be the realization that plea bargaining requires various safeguards, the overall principle more important (if not for these two defendants) than the results in the specific cases here.
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* See also, his separate concurrence in a procedural ruling, speaking of people who have to "dance to the EPA’s tune" and other "unthinkable" things, at least when property rights are at stake ... another example of "angry Alito."
Scalia dissented from the bench today respecting two opinions, written by Kennedy (joined by the "liberals"), providing protections against ineffective counsel in respect to plea bargains. There were various complications involved in the case including proper application of habeas and the "broken egg" problem (a pre-trial plea bargain based on various things that no longer are present, including avoiding trial), a point focused on by Alito's separate dissent.* And, the reach of the rulings are unclear given certain limits set forth and leaving lower courts much discretion to unscramble those eggs as they deem fit.
Of primary importance is that the majority realized that nearly all prosecutions are plea bargains, so it is important to apply due process rules to the procedures. Scalia [in a section not joined by Roberts; Alito dissents separately) goes all holier than thou:
In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.Sadly, he says, the Supreme Court no longer finds it "somewhat embarrassing" but a "a constitutional entitlement." Oh please. Plea bargaining has been in place in one form or the other for quite some time. I read Samuel Walker talk about the fool's errand of those who tried to prevent plea bargaining in Sense and Nonsense About Crime twenty years ago. The majority doesn't make it a "constitutional entitlement." The government sets up the system in such a way that it is a major part of how things work. Just as police and prosecutors have loads of discretion to arrest and charge, only a game of "let's pretend" can avoid realizing it is a major part of the system. Like property that need not be allowed, once it is, it cannot be taken away or used in a way that violates due process.
Scalia is the one with a cheap view of criminal justice here. Four justices, including the Chief Justice, puts forth a limited view of the right to counsel. It rejects the reality set forth in the majority that it isn't just there to ensure the trial itself is fair and the person is convicted correctly in that sense. The right to a lawyer is one that is important as a whole. That's why Miranda rights speak of a "right to a lawyer" even before you step into a courtroom. Real life is not the pretend version of the dissent, one where one might imagine liberty and property taken away only after a trial. Often, the key moments are elsewhere, including when you surrender your rights via a plea bargain.
Four justices wish you to believe that the mere form of a "full and fair trial" is all you need, though one the majority keeps on trying to make "too long, too expensive, and unpredictable" [ironically, a core reason for plea bargaining is to avoid this sort of thing] per their misguided attempts at "perfection," which defense lawyers will be surprised to learn about after the limits put forth since the days of the Burger Court. The state sets up plea bargaining as THE major means to dispose of cases. It has responsibilities to ensure it is done right. If it wants, it need not use it, but as noted above, good luck with that. As with illegal confessions obtained in the station-house long behind that trial which can taint that conviction, even if the person is factually guilty and the jury so holds, mishandling plea bargaining -- which can result in (gambling or not) significant less time in prison and at times escape from death row -- taints the judgment.
If plea bargaining is so horrible, the path is not to avoid it as distasteful, but address its application. The dissent doesn't seem to want to end the practice. It wants to avoid dirtying its hands in trying to find some sort of rough justice. The important aspect of the case to me seems to be the realization that plea bargaining requires various safeguards, the overall principle more important (if not for these two defendants) than the results in the specific cases here.
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* See also, his separate concurrence in a procedural ruling, speaking of people who have to "dance to the EPA’s tune" and other "unthinkable" things, at least when property rights are at stake ... another example of "angry Alito."