Defendants in criminal cases have a Sixth Amendment right to effective assistance of counsel at trial, and two recent decisions of the U.S. Supreme Court have expanded this right to plea negotiations. These cases highlight the important role that defense attorneys play in all stages of the criminal law process and the consequences that can arise from inadequate legal representation.
“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,” Justice Anthony M. Kennedy wrote. “Criminal justice today is for the most part a system of pleas, not a system of trials.”
Justice Kennedy went on to note that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas, which is why plea bargaining should be considered a “critical” stage of criminal law proceedings for the purposes of the Sixth Amendment right to counsel.
Missouri v. Frye: The Uncommunicated Plea Offer Lapses
The first of the two cases that the Supreme Court decided involved a Missouri man who was charged with driving on a revoked license. The prosecutor in the defendant’s case sent a plea bargain offer to the defense attorney which the attorney failed to communicate to the defendant. The offer would have reduced the defendant’s felony charge to a misdemeanor that carried a 90-day jail sentence. The prosecution’s offer expired and the defendant pleaded guilty to a felony charge that resulted in a three year prison sentence.
The Supreme Court held that the Sixth Amendment right to effective assistance of counsel applied to all “critical” stages of a criminal proceeding and that plea bargaining constituted a critical stage.
Attorneys generally have a professional duty to communicate all potentially favorable plea offers to a defendant, which the attorney in this case did not do. The defendant had the additional burden of demonstrating three things to establish ineffective assistance of counsel:
- He would have accepted the plea agreement if it had been communicated.
- The prosecution would have adhered to the plea agreement.
- The trial court would not have rejected the agreement.
Although it was likely that the defendant would have accepted the plea agreement, he ran into problems with the second and third prongs of the ineffective assistance of counsel test. The defendant happened to be arrested for driving on a revoked license yet again right before his preliminary hearing, so it was likely that the prosecution or court would have declined to support the plea agreement even if he had accepted it.
The Supreme Court remanded the case back to Missouri to determine whether the trial court and the prosecutor would have honored the plea agreement, while reaffirming the defendant’s right to effective counsel in the plea agreement stage.
Lafler v. Cooper: Bad Legal Advice Causes the Rejection of a Plea Offer
The second case decided by the Supreme Court involved a Michigan man who was charged with attempted murder and other offenses. The prosecution offered to dismiss two of the man’s charges and recommend a sentence between 51 and 85 months in exchange for a guilty plea.
The defendant alleged that his attorney erroneously advised him to reject the plea offer on the basis that the prosecution could not establish intent to murder because the victim was shot below the waist. The prosecution was successful however and secured a conviction on all of the man’s charges and a mandatory minimum sentence of 185-to-360 months in prison.
A Michigan appellate court rejected the defendant’s claim that his counsel’s advice constituted ineffective assistance so he filed a federal habeas petition. The federal courts determined that the Michigan court misapplied the effective-assistance standards of Strickland v. Washington, and ordered the reinstatement of the defendant’s original plea offer.
The Supreme Court determined that instead of mandating the enforcement of the original plea offer, it was more appropriate for the state to reissue the plea offer to the defendant. If the defendant accepted the plea offer then the Michigan trial court had the discretion to vacate the defendant’s convictions and honor the plea agreement, vacate only some of the convictions, or uphold the conviction and sentence from the trial.
Justice Antonin Scalia was horrified by this outcome and sharply criticized it in his dissent.
“I suspect that the Court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway,” Justice Scalia wrote. “The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any “remedy” provided for this will do nothing but undo the just results of a fair adversarial process.”
Plea Bargains replacing Trials as the “Critical Stage” in Criminal Proceedings
The two cases decided by the Supreme Court officially acknowledged the central role that plea bargains play in the criminal justice system. Ineffective assistance of counsel in the plea bargaining stage of a criminal proceeding can have drastic consequences for a defendant which is why the Supreme Court finally acknowledged that plea bargains constitute a sufficiently critical stage in the criminal law process to warrant Sixth Amendment protections of effective assistance of counsel.
“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
Attorneys must both communicate potentially favorable plea bargains to a defendant and offer the defendant competent legal advice to evaluate a plea bargain. The justices acknowledged that the exact scope of this new rule will be the subject of much litigation to come, but the acknowledgement of the importance of plea bargaining will cause defense attorneys, judges and prosecutors to handle plea agreements with extra care.
