Yesterday the Supreme Court released its judgments in Missouri v Frye and Lafler v Cooper.
The Court ruled 5-4 that:
Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, 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 actual judgment and sentence imposed [Lafler].
The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings” [Missouri].
The New York Times points out that the ruling “vastly expanded judges’ supervision of the criminal justice system”:
The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”
Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.
Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”
Scholars agreed about its significance.
“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,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.
Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining, said 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.”