Stephanos Bibas

The Washington Times announced that sentencing scholar Stephanos Bibas was offered an open position on the Third Circuit under the Trump Administration. His book, “The Machinery of Criminal Justice,” was published in 2012 by Oxford University Press. He was nominated to fill the seat of Marjorie Rendell, who assumed senior status on July 1, 2015.

The Alliance for Justice have released this critical new report on the Stephanos Bibas nomination and record and AFJ President Nan Aron say that in his coming confirmation hearing the “onus is on him to alleviate concerns about his approach to the rights of individuals who might find themselves before him in court.” Se more below.

Here are are the details from the press account cited above:

“President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April. Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

“These appointments follow the successful nomination and confirmation of associate Justice Neil M. Gorsuch to the United States Supreme Court, the successful nomination and confirmation of Judge Amul R. Thapar of Kentucky to serve as a circuit judge on the United States Court of Appeals for the Sixth Circuit, and the nomination of numerous candidates to other judgeships,” the White House said in a statement.

Mr. Trump also is nominating U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003. The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York….

“President Trump continues to put forward superlative judicial nominees with sterling credentials and impressive intellects,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “It’s especially notable that President Trump continues to pick current and former academics for the appellate bench — more so than any recent president. This will only magnify the impact his nominees are likely to have on the federal courts.”

An excerpt of the AF account was:

“Stephanos Bibas received his B.A. from Columbia University and, in 1991, earned a B.A and an M.A. in jurisprudence from Oxford University.9 Bibas received his J.D. from Yale Law School.10 After law school, he clerked for Judge Patrick E. Higginbotham on the Fifth Circuit and, after a two-year stint at Covington & Burling, clerked for Justice Anthony Kennedy on the United
States Supreme Court.

Upon completing his clerkship, Bibas was an Assistant United States Attorney in the Southern District of New York for two years. He then was a research fellow at Yale Law School for a year, taught at the University of Iowa College of law for five years, and has been a professor at the University of Pennsylvania Law School since 2006. Bibas currently is the Director of the
University of Pennsylvania Law School’s Supreme Court Clinic and, in that capacity, has argued six Supreme Court cases: Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016); Bank of America v. Caulkett, 135 S. Ct. 1995 (2015); Petrella v. MGM, 134 S. Ct. 1962 (2014); Vartelas v. Holder, 566 U.S. 257 (2012); Turner v. Rogers, 564 U.S. 431 (2011); Padilla v. Kentucky, 559 U.S. 356 (2010).

Bibas currently serves as a professor at the University of Pennsylvania Law School. Having worked in academia for more than 20 years, he has amassed a body of scholarly work that
is extensive. His articles focus on criminal law and sentencing, such as the effects of plea
bargaining on the criminal justice system and fact-finding at sentencing.

Much of his work is thoughtful. For example, Bibas has been outspoken about injustices in the criminal justice system involving the prevalence of plea bargains, noting that the system is “capacious, onerous machinery that sweeps everyone in.” He has highlighted the need for prison reform, including increased education for offenders.

One particularly troubling aspect of Bibas’s record came prior to his academic career,
during his brief stint as a federal prosecutor. Although he only served as a prosecutor for two years, in that time he used federal prosecutorial, law enforcement, and court resources to bring charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. This deployment of resources to prosecute such a minor offense has been roundly criticized, and Bibas lost the case when the cashier was acquitted.

To make matters worse, the case against the cashier unraveled when, on the morning of the trial, long after discovery should have occurred, Bibas turned over a key piece of evidence that corroborated the defense. It isn’t clear when Bibas had become aware of the evidence, but the
transcript of the court hearing suggests that Bibas may have withheld the evidence for a period of time.”