Kennedy Gets it Right on Plea Bargains


The Supreme Court issued two very important rulings last week that expanded, a bit, the protections guaranteed as a result of the right to counsel. In both cases the result was 5-4, with Justice Kennedy joining the four more liberal justices and the four conservatives all in dissent. Both cases involved attorneys giving bad advice to defendants concerning plea bargains offered by the prosecutors. Orin Kerr explains the two cases. The first:

In the first case, Missouri v. Frye, the prosecution made a plea offer with an expiration date, and the lawyer did not tell his client of the offer. The defendant claimed that he would have taken the deal if he had known about it. Justice Kennedy holds that the Sixth Amendment right to counsel is implicated fully at the plea stage. Because the state conceded that the lawyer was ineffective if the right to counsel applied, the remaining issue was how to tell if a defendant was prejudiced by the lawyer’s ineffectiveness. According to the majority, the test for whether the defendant was prejudiced is as follows:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

And the second:

In the second case, Lafler v. Cooper, the defense attorney told the defendant about the plea offer but allegedly gave the client extremely foolish advice to reject the plea and go to trial. The defendant followed the lawyer’s advice, went to trial, was convicted on all counts, and received a much higher sentence than the plea. Again, the state conceded that the lawyer was ineffective. The test for prejudice in this setting was announced as the following:

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

About 95% of all convictions in the United States are the result of plea bargains, with prosecutors overcharging and using mandatory minimum sentences in order to force the defendants to plead guilty. As Justice Kennedy wrote, “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.” The plea bargain “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Predictably, the conservatives on the court are more concerned about the fact that the case would give some defendants the right to challenge the incompetence of their attorneys who pushed them to plea bargain without giving them accurate information. Justice Scalia argued that it would open up “a whole new boutique of constitutional jurisprudence … plea-bargaining law.” But so what? Protecting constitutional rights requires lawyers to represent clients in asserting those rights. This is an argument against protecting rights? In what universe?

Comments

  1. says

    Scalia’s dissent doesn’t surprise me. He has a very narrow, anaemic view of what the right to counsel should entail – see, for instance, his godawful dissent in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in which he thought that non-citizen defendants in criminal proceedings had no constitutional right to be advised about the potential immigration consequences of entering a guilty plea. (Immigration law is very complex, and many criminal attorneys fail to sufficiently warn their clients about the likelihood that, if they are non-citizens, they may be deported as “criminal aliens” at the end of their sentences.) Just one of the areas in which his approach to constitutional interpretation leads to a point-blank to protect people who are being screwed over by the system.

  2. Hercules Grytpype-Thynne says

    Justice Scalia argued that it would open up “a whole new boutique of constitutional jurisprudence … plea-bargaining law.”

    Just as John McCain argued against the Ledbetter Fair Pay Act on the ground that it would lead to more lawsuits over unequal pay. Well, yeah, that’s kind of the point.

  3. gshelley says

    Scalia seems to frequently be concerned about the possible consequences of a decision, which would seem to me to have little to do with actual constitutionality.

  4. timberwoof says

    Oh, my faith is shattered! I learned in school that the US Justice system was the best in the world! Other countries have trial by ordeal, or by—gasp—a judge, but we proud Americans have trial by jury, that no other country in the whole world has. And now a Supreme Court Justice is telling us that Americans don’t get trial by jury, but by cop and prosecutor? I can’t tell you how disillusioned I am.

  5. says

    …the defense attorney told the defendant about the plea offer but allegedly gave the client extremely foolish advice to reject the plea and go to trial. … Again, the state conceded that the lawyer was ineffective.

    I’m often amazed by the number of really bad lawyers out there. What does it say about your lawyering skills if not only did you give suboptimal advice, but that your counsel was deemed ineffective, in the same legal category as if the defendant didn’t even have a lawyer?

  6. D. C. Sessions says

    Four of the current justices are really unhappy with the idea that criminals should have a right to counsel that they don’t pay for themselves — it’s a waste of taxpayer money, and has no basis in the Constitution. We know that it has no basis in the Constitution because the Founders didn’t provide free public defenders.

    So it’s all just activist liberal judges, and eventually there will be enough conservatives on the Court to get rid of all that junk.

  7. slc1 says

    Re D. C. Sessions @ #5

    So it’s all just activist liberal judges, and eventually there will be enough conservatives on the Court to get rid of all that junk.

    There certainly will be if ratfucker Romney is elected.

  8. says

    Justice Kennedy wrote, “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.” The plea bargain “is not some adjunct to the criminal justice system; it is the criminal justice system.”

    He can write that, and others quote it, without apparently being much troubled that perhaps that is a much bigger problem than the “ineffective counsel” question?

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