The Cautionary Instruction: Plea bargaining afforded Constitutional protections

The Pittsburgh Post-Gazette/Ipso Facto
March 30, 2012

Plea bargaining is an integral part of the criminal justice system. Last week, Justice Antonin Scalia said, with apparent surprise, that plea bargaining “is no longer a somewhat embarrassing adjunct to our criminal justice system.”

Justice Scalia should not be surprised, 97 percent of federal cases and 94 percent of state cases end in plea bargains. The reality is that criminal justice today is "a system of pleas," wrote Justice Anthony M. Kennedy. In two U.S. Supreme Court decisions last week, the court ruled that the Constitutional guarantee of adequate assistance of counsel cannot exclude the "central role plea bargaining plays." For the most part, plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

The plea bargain, however unpopular or unseemly, plays a central role in the administration of justice .

Setting aside the fact that trying every criminal case is impossible, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are situations where a plea to a lesser offense is better than a not guilty verdict. A reluctant witness or a poor witness will influence plea negotiations.

Witnesses often have to deal with their own demons, such as criminal records and substance abuse—such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.

Last week, in Lafler v.Cooper, the court ruled that an attorney's advice to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Frye, the court found that counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

Justice Kennedy wrote in Frye, “In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

What will a defendant claiming ineffective assistance of counsel during plea negotiations have to prove? The court has established a three prong analysis. First, a defendant must prove he would have accepted the plea bargain if not for bad legal advice; that there was a reasonable probability that prosecutors would not have withdrawn the offer before trial; and a judge would have accepted the plea.

Justice Scalia calls it “crystal-ball gazing posing as legal analysis.”

Stephanos Bibas, a law professor at the University of Pennsylvania, told the New York Times the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship. “It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

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