The Trump Administration has nominated many academics and former academics to the bench.  Yet, even among them, no one is as prolific as Stephanos Bibas.  Bibas, a professor of law and criminology at the University of Pennsylvania Law School, enters the confirmation process as one of the nation’s foremost experts in criminal law and procedure.  If confirmed, he stands ready to shape a new era of criminal jurisprudence, with an increased focus on the morality of punishment and the rights of victims.

Background

Stephanos Bibas was born in New York City in 1969 in a Greek-American family.  While spending summers working in his family’s restaurant, Bibas graduated high school early and entered Columbia University at 16.[1]  At Columbia, Bibas became involved with Parliamentary Debate, and began to explore a career in law.[2]  Bibas graduated summa cum laude from Columbia in 1989 with a B.A. in political theory.

After graduating from Columbia, Bibas attended Oxford University, receiving a B.A. and M.A. in jurisprudence.  While at Oxford, Bibas participated in the 1991 World Debate Championships in Toronto, being awarded the title of 1st Place Speaker.[3]  Bibas then attended Yale Law School, graduating with a J.D. in 1994.

After graduation, and a clerkship with Judge Patrick Higginbotham on the U.S. Court of Appeals for the Fifth Circuit, Bibas joined Covington & Burling as a litigation associate.  In 1997, Bibas secured a prestigious clerkship with Justice Anthony Kennedy, clerking on the Supreme Court alongside future appellate judges Raymond Kethledge,[4] John Owens,[5] and Sri Srinivasan.[6]

After his Supreme Court clerkship, Bibas was hired as a federal prosecutor by Mary Jo White, the U.S. Attorney for the Southern District of New York.  In 2000, he left that position to join Yale Law School at a research fellow.[7]  In 2001, Bibas joined the faculty of the University of Iowa College of Law, teaching criminal law and criminal procedure.

In 2006, Bibas moved from the University of Iowa to the University of Pennsylvania Law School as a Professor of Law.  Bibas took on a secondary appointment as a Professor of Criminology in 2009.  He currently serves in both capacities.

History of the Seat

Bibas has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Marjorie Rendell.  Rendell, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 1, 2015.[8]  On March 15, 2016, President Obama nominated Rebecca Ross Haywood, the Appellate Chief of the Civil Division of the United States Attorney’s Office for the Western District of Pennsylvania, to fill the vacancy.[9]  However, Haywood was opposed by Sen. Patrick Toomey (R-PA) who refused to return a blue slip on her nomination.[10]  Without the blue slip, Haywood did not receive a hearing, and her nomination died at the end of the 114th Congress.

After his election, President Trump declined to renominate Haywood, instead nominating Bibas to the seat on June 7, 2017.

Political Activity

Bibas has made a few political donations in his lifetime, all to Republicans.  In 1996, Bibas donated $250 to the Presidential Campaign of Bob Dole.[11]  Similarly, in 2012, he gave $2500 to the Presidential Campaign of Mitt Romney, as well as $1000 to Romney’s Political Action Committee (PAC), Restore Our Future.[12]  Additionally, Bibas has given $1500 to Sen. Pat Toomey’s PAC, Citizens for Prosperity in America.[13]

Legal Experience

While Bibas has spent most of his legal career in academia, he has practiced law for two short periods: 1995-97, when he was a litigation associate at Covington & Burling; and 1998-2000, when he was a federal prosecutor with the U.S. Attorney for the Southern District of New York.  Additionally, Bibas has represented clients through his work at the University of Pennsylvania Supreme Court clinic.

As a litigation associate at Covington & Burling, Bibas handled a variety of cases, including representing a pro bono plaintiff in an employment discrimination trial and appeal in D.C. federal court.[14]  As a federal prosecutor, Bibas notably prosecuted Alastair Duncan, a dealer charged with conspiracy for stealing Tiffany Glass from mausoleums.[15]

More controversially, in 1999, Bibas led the aggressive prosecution of a cashier at the Veterans’ Affair Medical Center in the Bronx.[16]  The cashier in question, Linda Williams, lost her job and faced a misdemeanor charge (later dropped to a citation) for allegedly pocketing $7.00 given to her by a customer.[17]  Bibas led an aggressive prosecution, calling five government witnesses (none of whom had actually seen the entire transaction that Williams was charged with pilfering).[18]  Despite one of the government witnesses testifying that the missing money was later found in Williams’ cash register, Bibas pushed for a guilty verdict, stating in his closing that Williams “is guilty and she knows it.”[19]  Judge Douglas Eaton was unimpressed and acquitted Williams from the bench after Bibas’ closing.  Bibas’ conduct during the Williams trial has already drawn criticism from Alliance for Justice, a liberal-leaning nonprofit group.[20]

As a law professor at the University of Pennsylvania, Bibas also runs the Law School’s Supreme Court clinic.  In this capacity, Bibas has argued six cases before the U.S. Supreme Court:

Turner v. Rogers[21] – This case involved a challenge to civil contempt charges in a child support proceeding.  Turner challenged South Carolina’s refusal to provide him with counsel during a civil contempt proceeding, even though he faced the risk of incarceration.  Bibas represented Rebecca Rogers, the mother in the underlying child support action, and argued that, as Turner had already served the contempt sentence, the case was moot.  The Supreme Court unanimously disagreed with Bibas, finding that the case was not moot.  Furthermore, a five-justice majority found, in an opinion by Justice Stephen Breyer, that South Carolina needed to provide safeguards against the erroneous deprivation of liberty in civil contempt cases.

Tapia v. United States[22] – Tapia, convicted of bail jumping and bringing illegal aliens into the United States, was sentenced to a 51-month sentence, in part, to permit Tapia to take part in drug rehabilitation while incarcerated.  Tapia challenged her extended sentence, arguing that a judge could not lengthen a sentence for a rehabilitative goal.  With the United States declining to defend the sentence, Bibas was appointed as amicus to do so.  Ultimately, the Supreme Court, in a unanimous opinion by Justice Elena Kagan, found that Tapia’s sentence violated the Sentencing Reform Act of 1984.

Vartelas v. Holder[23] – In this case, Bibas represented Vartelas, an immigrant who had been convicted of conspiracy to make or possess a counterfeit security in 1994.  In 2003, Vartelas visited Greece for a week and was denied re-entry based on his 1994 conviction.  Representing Vartelas, Bibas argued that the Illegal Immigration Reform and Immigrant Responsibility Act, which was passed after Vartelas’ conviction and barred his re-entry, could not be retroactively applied against convictions of record before the law’s passage.  In a 6-3 opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed.

Petrella v. MGM, Inc.[24] – This case involved a copyright claim filed over the movie Raging Bull.  Bibas represented the plaintiffs in the case who sought to overcome the defense of “laches” against their copyright claim.  In an opinion by Ginsburg, a six-justice majority agreed with Bibas that laches did not bar the copyright claim in this case.

Bank of America v. Caulkett[25] – In this case, Bibas represented debtors who had taken out second mortgages on an already underwater property, and sought to avoid foreclosure.  In an opinion by Justice Clarence Thomas, a unanimous Supreme Court rejected Bibas’ arguments and found that debtors could not void junior mortgages where senior mortgages on the same property were underwater.

Encino Motorcars, LLC. v. Navarro, et al.[26] – In this case, Bibas represented a group of “service advisors” at a car dealership who sought overtime compensation under the Fair Labor Standards Act.  While the Department of Labor had held that service advisors were exempt from overtime protections in 1987, it reversed its position in 2011.  The Supreme Court found, in a 6-2 opinion by Justice Anthony Kennedy, that the Labor Department’s new position should not be according controlling weight in determining whether overtime should be offered.

Scholarship

Summarizing Bibas’ scholarship is not an easy task.  Not only is he a thought leader on issues of criminal law, he is also one of the most prolific academics to be nominated for the bench.[27]  Below are summaries of his writings, organized by general topic.

Habeas Corpus

One of Bibas’ earliest writings is a “Letter to the Editor” that he authored as an associate at Covington & Burling.  In the Letter, written in response to an editorial opposing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Bibas argues that the writ of habeas corpus should be significantly limited.[28]  Specifically, Bibas notes that habeas was originally limited to those held by military police and was not available in civilian courts.  Bibas goes on to argue that “there is no reason to allow prisoners who make no claim that they are innocent to hog the justice system at the expense of law-abiding citizens.”[29]

Bibas’ letter sparked a response from Boston University Law School Prof. Larry Yackle, who disagreed with Bibas’ historical analysis, noting:

“[S]tate convictions have been subject to re-examination in Federal court virtually since the founding of the Republic.”[30]

Yackle’s letter also calls out Bibas by name, accusing him of thinking that “Federal court enforcement of the Bill of Rights is a bad idea.”[31]

Plea Bargaining

Bibas is a strong advocate of reforming the current plea bargaining system, arguing that plea bargaining, as it currently exists, fails to protect defendants’ rights, while simultaneously failing to impose adequate punishment on the guilty.

In particular, Bibas is a strong critic of Alford or nolo contendre pleas (plea deals that allow the defendant to avoid admitting guilt).  In a 2003 article, Bibas argued for the abolishment of Alford pleas, arguing that they detract from the moral clarity that should be the main feature of the criminal sentencing process.  Bibas notes that Alford pleas “undermine the procedural values of accuracy and public confidence in accuracy and fairness by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty.”[32]  Bibas also argues that Alford pleas “allow guilty defendants to avoid accepting responsibility for their wrongs” and “muddy the criminal law’s moral message.”[33]  In another article, Bibas argues that the public will lose confidence in a criminal justice system that uses Alford pleas to convict the innocent.[34]  Elsewhere, Bibas notes that “most defendants who balk at accepting guilt are not innocent, but guilty criminals in denial” and that Alford pleas “harm not only offenders’ rehabilitation, but also victims’ healing.”[35]

Furthermore, Bibas has advocated for a more general reform of the plea bargain process, noting that the current process often has outcomes dependant on the quality of counsel, with poorer defendants often being stuck with inept attorneys.[36]  He also notes that courts have stopped relying more heavily on trials and “unequivocal” guilty pleas.[37]  As such, Bibas endorses a “consumer protection” model of regulating plea bargains, allowing defendants some protections against bad advice from defense counsel.[38]

Apprendi

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that any facts used to enhance a defendant’s sentence beyond the prescribed statutory maximum must be found by the jury beyond a reasonable doubt.[39]  Bibas has been critical of Apprendi since the decision came out, arguing that requiring enhancing facts to be proven by a jury puts defendants in an impossible position: plead guilty and give up the right to a jury determination of enhancement; or go to trial and risk enhanced trial penalties.[40]  Furthermore, Bibas argues that, by removing sentencing power from judges, Apprendi empowers prosecutors to “charge bargain.”[41]

In 2004, the Supreme Court applied and reaffirmed Apprendi in Blakely v. Washington.[42]  Bibas wrote in response that Blakely would lead to the invalidation of the Sentencing Guidelines, and that, while this would benefit defendants “who could afford first-rate lawyers,” it would also increase “arbitrariness, disparity, and variations in sentences.”[43]  After the Supreme Court struck down the mandatory sentencing guidelines in United States v. Booker,[44] Bibas once again criticized the decision, noting that it undercuts Congress’ desire to punish white collar criminals harshly, and would lead to more leniency by judges in their sentencing.[45]  Specifically, Bibas notes that, if left up to the discretion of judges, “sentencing judges may be indulging unconscious racial and class stereotypes by going easy on defendants who remind judges of themselves or with whom judges can identify.”[46]

Fifth Amendment

Bibas is also strongly critical of the Supreme Court’s decision in Miranda v. Arizona and the “right to remain silent” framework it set up.  In response to an article praising the right to remain silent, Bibas notes that many guilty defendants do not remain silent, and instead choose to confess or lie and make up an alibi.  Remaining silent is often treated as evidence of guilt by police and investigators, and, with the prominence of plea bargaining, their inferences may matter more than those of juries.[47]  As such, there is a strong incentive for defendants, guilty or innocent, to co-operate with the police.[48]  In another article, Bibas argues that Miranda failed to adequately regulate coercive police interrogations, and criticizes the Rehnquist Court for failing to overturn Miranda in its decision in United States v. Dickerson.[49]

Gideon and Right to Counsel

Bibas has also written about the right to counsel, as guaranteed by the Supreme Court in Gideon v. Wainwright.  Specifically, Bibas argues that Gideon has spread the resources of lawyers too thin, thus diluting their effectiveness in capital cases.[50]  Furthermore, Bibas argues that the bar for effectiveness of lawyers is set too low, and as such, “many defendants have lawyers in name only.”[51]  Bibas also attacks the Strickland test for determining effectiveness of counsel, arguing that courts have a “hindsight bias” that prevents them from finding prejudice in cases with ineffective attorneys.[52]

Prosecutorial Regulation

A former prosecutor himself, Bibas has written extensively on prosecutorial discretion, and reform of prosecutorial incentives.  In one paper, Bibas advocates for the use of compensation to encourage prosecutors to model appropriate conduct.  For example, Bibas notes:

“A prosecutor who regularly burns the midnight oil deserves to be paid more than one who who leaves the office every day at 5 p.m.”[53]

Bibas also advocates an evaluation model to encourage judges, defense attorneys, and the public to provide feedback of prosecutors’ work, and to base compensation on such feedback.[54]  Bibas has also advocated reforming the culture in prosecutor’s offices to encourage self-regulation.[55]  Interestingly, Bibas cites the New Orleans District Attorney’s Office under the leadership of Harry Connick Sr. as an example of self-regulation by prosecutors, noting:

“The New Orleans District Attorney’s Office used centralized screening, close supervisory review, and information technology to restrict overcharging and plea bargaining.  By doing so, District Attorney Harry Connick, Sr. fulfilled his campaign pledge to crack down on plea bargaining.”[56]

Bibas fails to note that Connick and the New Orleans D.A.’s Office have come under repeated scrutiny for failing to disclose relevant exculpatory evidence,[57] and using prosecutorial power to intimidate defense witnesses.[58]

Sentencing Reform

Most academics and attorneys who discuss sentencing reform focus on mandatory minimum sentences or overly harsh sentencing laws.  In contrast, Bibas has been a strong advocate for more unorthodox sentencing procedures.  For example, in 2004, Bibas co-authored a paper expressing the need for “remorse and apology” in the sentencing process.[59]  Specifically, Bibas argued that courts at sentencing should use defendant’s conduct at trial, during pleas, and in mediation with the victim to tailor the sentence based on the level of remorse and apology demonstrated.[60]  In another paper, Bibas also encourages the incorporation of mercy and forgiveness, through greater victim involvement, in the criminal justice system.[61]

Originalism

Unlike other academics with Federalist Society backgrounds, Bibas is not an advocate of originalism.  Instead, Bibas argues that, while originalism can be helpful, in many cases, historical evidence is unclear and cannot be the foundation for workable rules.[62]  For example, Bibas notes that originalism contradicts long-held doctrines such as the exclusionary rule.[63]  Further, he argues that many of the defendant-friendly doctrines brought about by an originalist interpretation, including a strict interpretation of the Confrontation Clause, do not take into account evolving views in the law during the 18th Century.[64]  Adopting an originalist framework on the Confrontation Clause, Bibas notes, “freezes in place a snapshot of law that was changing in the late eighteenth century.”[65]  Furthermore, Bibas notes that historical propositions cannot be analogized to all present day situations:

“…today’s issues do not involve the same set of considerations that concerned the Framers.”[66]

Overall Assessment

Some may describe Bibas as a solid conservative.  His writings demonstrate a deep interest with the moral element of crime and punishment, focusing on a belief that the criminal justice system can and should identify and punish “morally wrong” actors.  Furthermore, his aggressive (and politically unwise) prosecution of a popular cashier over $7 in cash makes it easy to caricature Bibas as a modern-day Javert.

At the same time, Bibas’ criticisms of the current criminal justice system are based not only on its failure towards victims, but also towards defendants.  His writings show a strong concern with ensuring that defendants receive adequate representation, and that constitutional protections are not limited to the small fraction of defendants who go to trial, but extend to the vast majority who plead their cases.  As such, others can argue that Bibas holds more moderate-liberal views.

This combination makes Bibas’ ideology hard to pin down.  Rather, Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence.  From demanding the greater involvement of remorse in the sentencing process, to the advocacy of offering prosecutors financial incentives to perform well, Bibas is definitely an outside-the-box thinker.

If there is a jurist that Bibas looks likely to model, it is recently-retired Seventh Circuit Judge Richard Posner.  Like Bibas, Posner was a brilliant path-breaking academic when he was tapped to the federal bench.  On the bench, Posner was notoriously unpredictable, with little ideological commitment, but a deep concern nonetheless for the practical application of decisions, famously noting:

“A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?”

Bibas’ own concern about the practical effect of the Supreme Court’s criminal decisions, especially their effects both for defendants and victims, can be described as Posnerian.  It is up to the Senate Judiciary Committee to determine if that is a quality to be encouraged on the federal bench.

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