Counsel at the plea bargaining gate

February 1, 2013

handcuffs criminal lawEditor’s note: Over the next few weeks we will be featuring posts from our Westlaw Editorial team. This is the team that creates editorial enhancements for caselaw, including headnotes and Key Numbers. Enjoy the series: Westlaw Editorial’s Top Cases of 2012.

Criminal defendants require the effective assistance of counsel during the plea bargaining process, and this means that a defense attorney has the duty to communicate to the defendant formal plea offers from the prosecution that may have favorable terms and conditions. It also means that a defendant can still establish the prejudice prong of a claim of ineffective assistance of counsel based on his or her attorney’s deficient legal advice to reject a plea offer, even though the defendant was later convicted after a full and fair trial.

 plea bargaining headnote

The Supreme Court affirmed these principles, and thereby extended the reach of the Sixth Amendment right to the effective assistance of defense counsel, in the companion cases of Missouri v. Frye and Lafler v. Cooper, which were both authored by Justice Kennedy.

For most defendants the plea bargaining process has become the criminal justice system, given that 97 percent of federal convictions, and 94 percent of state convictions, result from guilty pleas, Justice Kennedy observed. Anything less than the effective assistance of counsel during this process might therefore deny a defendant the constitutional right to counsel at the critical stage of his or her case.

Accordingly, neither the formal procedures of a plea hearing before a judge, nor the guarantee of a fair trial, serve as a sufficient backstop to inoculate errors by counsel during plea negotiations. As Headnote 8 in Frye noted, the benefits of plea bargaining include the conservation of prosecutorial resources and the ability of defendants to admit their crimes and receive more favorable sentences. But these benefits do not obtain unless a defense attorney provides effective assistance.

Justice Scalia, in dissenting opinions filed in both cases, challenged what he called the Court’s “constitutionalization” of the plea bargaining process, which he said had opened “a whole new boutique of constitutional jurisprudence (‘plea bargaining law’) without even specifying the remedies the boutique offers.” The Sixth Amendment does not address the fairness of the plea bargaining process, he said, since its guarantee of the effective assistance of counsel concerns the fairness of a conviction.