April 1, 2012
Last week, the U.S. Supreme Court elevated plea bargaining, as Justice Antonin Scalia put it, “from a necessary evil to constitutional entitlement.” In two separate cases, the court extended the Sixth Amendment right to a fair trial to include competent legal representation during plea negotiations.
In a dissenting opinion, Scalia described plea bargaining as “a somewhat embarrassing adjunct to our criminal justice system.” He said plea bargaining creates a climate where prosecutors are prone to overcharging; and overcharging compels innocent people to plead guilty in order to avoid harsh consequences. For those who are actually guilty, plea bargaining often results in a sentence well below what the law provides.
Scalia contends that plea bargaining is accepted because “many” believe that the criminal justice system would grind to a halt if forced to try every case.
The truth is that 97 percent of federal cases and 94 percent of state cases end in plea bargains. As the system currently operates, it would be impossible to provide a constitutionally mandated trial-by-jury for every criminal defendant.
The two plea bargaining cases decided last week were Lafler v. Cooper and Missouri v. Frye. In Cooper, the court considered whether an attorney’s advice to his client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Frye, the court considered whether counsel’s failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
What is interesting about these decisions is that, on the one hand, the court acknowledged, “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Yet, according to Justice Anthony M. Kennedy, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”
How important are these decisions? Widener University law professor Wesley M. Oliver told the New York Times, “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”
Margaret Colgate Love, an attorney who prepared the American Bar Association brief advocating for recognition of plea bargain rights, told the Washington Post, “What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system.”
However, not everyone agreed that the decisions will have a positive impact on the criminal justice system. Robert Weisberg, a law professor at Stanford Law School, told National Public Radio that it will often be difficult to recreate the circumstances that existed prior to a defendant rejecting, or ignoring, a plea bargain and then getting convicted at trial. “It’s as if we have to erase history, forget that the defendant was convicted at a fair trial, and somehow reconstruct behind some veil of ignorance the original plea bargain to see if it would have gone down, and that’s not easy.”
Justice Scalia characterized the newly established test for plea bargain relief as “crystal-ball gazing posing as legal analysis.” There is no question that it will be difficult to reconstruct how a negotiated plea bargain may have worked out absent substandard legal advice.
The court could no longer ignore that plea bargaining is the grease that keeps the criminal justice system lubricated. With more than 9 out of 10 cases resolved by plea, the court has finally extended constitutional scrutiny to a process that occurs in nearly every single case. Competent legal counsel during plea negotiations is deservedly a constitutionally protected right.
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