Antonin Scalia

SCOTUS Says Defendants Have a Right to Effective Counsel in Deciding Whether to Reject a Plea Bargain

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In a pair of decisions today, the Supreme Court ruled that the Sixth Amendment right to counsel can be violated when defendants reject favorable plea bargains based on bad legal advice. One case involved Galin E. Frye, a Missouri man accused of driving with a revoked license in 2007. Because his lawyer neglected to inform him of a plea deal offer under which he would have served 90 days in jail for a misdemeanor, Frye ended up pleading guilty to a felony and was sentened to three years in prison. The other case involved Anthony Cooper, who in 2003 was charged with shooting a woman in Detroit. After his lawyer erroneously told him the government could not prove intent to kill because all four bullets struck the victim below her waist, Cooper rejected a plea deal involving a sentence of four to seven years. He went to trial, was convicted, and is instead serving 15 to 30 years.

The Court already had ruled that the right to counsel applies to the acceptance of plea bargains. Writing for the five-justice majority in Lafler v. Cooper, Justice Anthony Kennedy, joined by the Court's four Democratic appointees, rejected the argument that "a fair trial wipes clean any deficient performance by defense counsel during plea bargaining," saying that position ignores the reality of how criminal cases typically are handled:

Criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas….The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences. 

Kennedy, joined by the same four justices, applied similar logic in Missouri v. Frye.

Speaking from the bench for the four dissenters, Justice Antonin Scalia worried that "today's opinions open a whole new field of constitutionalized criminal procedure: federal plea-bargaining law." Dissenting in Lafler, he elaborated on his concerns:

The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice….The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today's opinions deal with only two aspects of counsel's plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be worked out in further constitutional litigation that will burden the criminal process. And it would be foolish to think that "constitutional" rules governing counsel's behavior will not be followed by rules governing the prosecution's behavior in the plea-bargaining process that the Court today announces " 'is the criminal justice system.' "Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from "the criminal justice system"?

Scalia thus implicitly concedes that prosecutors, by and large, use plea bargains to dodge the safeguards that are supposed to protect defendants' rights. Given that reality, it hardly seems outrageous to insist that defendants have minimally competent counsel in deciding whether to accept the risk that comes with the "pursuit of perfect justice" (which in any case falls far short of that goal in practice).

In the July issue of Reason, Timothy Lynch discussed how plea bargains, a "standard operating procedure" that "was not contemplated by the Framers," came to dominate the criminal justice system. Last fall I noted that the penalty for going to trial has risen in the last few decades because of mandatory minimum sentences. Last week I wondered what would happen if a substantial percentage of defendants nevertheless insisted on that right.

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  1. “Criminal justice today is for the most part a system of pleas, not a system of trials.”

    Duh. We’ve all seen Law & Order.

    1. This is a great article.

      http://www.nytimes.com/2012/03…..ystem.html

  2. And it would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the plea-bargaining process that the Court today announces

    Oookay, why is that a bad thing, exactly?

  3. This is pretty problematic for someone who wants to take the text of the amendment seriously. The right “to have the assistance of counsel for his defense” has to be stretched pretty far to include plea bargaining negotiations. A plea bargain is, ipso facto, a decision NOT to mount a defense.

    Furthermore, it’s unclear what the remedy would be if it’s found that counsel was incompetent in rejecting a plea deal. Does the plea deal go back on the table? Kind of defeats the purpose, since the prosecution offered the plea deal precisely to avoid having to go to trial.

    And don’t get all huffy about plea bargains being used to “deny the right to a trial”. No one is forced to accept a plea bargain.

    1. Decent points, but the decision about whether to accept a plea bargain is a decision about whether to mount a defense.

    2. Tulpa, would you say that that the right to counsel only arises when the trial begins, since that is where the defense is mounted*?

      *snerk.

      1. No shit.

      2. The defense is being prepared before then, evidence is gathered, jurors are selected, etc. All those are components of the accused’s defense and thus the right to an attorney should apply.

        I have a hard time accepting that the decision to plead guilty or not can be considered part of one’s defense.

    3. While I can see why Scalia is leery about extending the amount that the Defendant’s counsel’s incompetence can cause lengthy appeals, I think the majority have a point in that damn near everything is resolved by plea at this point and pretending that plea bargaining isn’t the norm is being willfully blind. And while Scalia wants to act like there’s no connection between Defendant’s counsel and the government, the reality is, especially in federal prosecution, the attorney defending the guy is either a public defender or appointed by the court, which means that the name on his paycheck is the US Department of the Treasury.

      And I suspect a malpractice suit won’t be satisfactory if you’re rotting for an extra 10 years.

  4. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice having way too fucking many laws

  5. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice….

    Because hustling them, the citizenry, through through the “justice” system is good enough for government work!

  6. Why am I envisioning a Constitutional challenge every time a defense attorney recommends turning down a plea and the defendant subsequently ends up with a conviction?

    1. Probably no more often than you see appeals for ineffective counsel when the defendant gets convicted at trial.

      1. I’d think it would almost necessarily have to be more since now there is the “hey, he told me to reject a deal and now I am worse off card”… unless, I guess, an ineffective counsel appeal is lodged after every conviction. If that’s the case, then it would add only to the scope not the number.

  7. Plea bargaining is bullshit anyway. I wish there were a constitutional amendment that prohibited sentences from being different depending on the plea.

    This would basically crash the criminal justice system. Everyone would plead not guilty and demand a jury trial for every charge.

    1. We need pleas because it is a way of getting people through the system faster and cheaper. You have almost no chance of winning in federal court if lots of charges are stacked on you so it is better to plea.

  8. Abolish the wages system

  9. OK maybe I’m reading this wrong, but it seems to me that the case in question is based on the fact that these two guys hired shitty lawyers.

    So my question is: At what point do you leave good old constitutional “right to counsel” and enter a new positive right of “right to counsel that doesn’t make mistakes, and if they do fuck up then the appeals court will bail you out.”

    Because, again I might be way off here, but it seems to me that the court just said “if you hire a lawyer, and he gives you advice that later proves to be bad, then you can ask for a do over”

    I don’t know if I’m making sense. But in my opinion this is where personal responsibility takes over. You get yourself a lawyer, it’s your job to make sure he’s a good one. At the end of the day, you have to make your own decisions and be held accountable for them.

    Obviously SLD applies and we have too many laws etc, etc.

  10. I think that Kennedy saw the latest report that the number of people taking the LSAT is down again, to numbers not seen in quite a while, and he wants to make sure that there is more demand for lawyers.

  11. “his lawyer erroneously told him the government could not prove intent to kill because all four bullets struck the victim below her waist”

    Is this some kind of leg-pull?

    1. I just realized that sounds like a ghoulish joke, but I mean, I can’t even see the lawyer on the Simpsons being that dumb.

      Yeah, you shoot someone four times, there’s a chance that might be understood as intent to kill

      1. Hit their femoral artery and they will likely die without an immediate tourniquet on their leg, and will likely lose the leg.

    2. Reminds of a line from a case I ran across once:

      “The fact that the defendant did not shoot his wife exactly through the heart does not tend in any degree to exculpate him. He shot her in the right breast. When any person standing 16 feet from another person points a loaded gun at that person’s chest area and pulls the trigger, the reasonable inference is that he intends to take that person’s life.”

      Commonwealth v. Chapman, 58 A.2d 433, 436 (Pa. 1948) (Maxey, J. concurring).

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