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.