U.S. Supreme Court recognizes defendant's right to effective counsel in plea bargaining 

By Brian Kinstler, Kinstler Law Office, Milwaukee

March 23, 2012 – Last week, in two closely-related opinions, the U.S. Supreme Court (by 5-4 votes) affirmed the principle that criminal defendants have a right to the effective assistance of counsel during the plea bargaining process.

Justice Anthony Kennedy wrote for the majority in both cases, joining the more liberal wing of the Court in extending constitutional protections to defendants who lose the benefit of a favorable plea deal because of their lawyers’ mistake.

The decisions are likely to have a nationwide impact on the practice of plea bargaining, which plays a central role in resolving the vast majority of criminal cases. Observers on both sides of the issue expect the decisions to lead to increased litigation over whether criminal defendants have received adequate representation.

In two written dissents, Justice Antonin Scalia fiercely objected to the majority’s reasoning, saying that the rulings were an unprecedented, unfair, and unworkable extension of the right to counsel which would allow guilty defendants to “escape a fair trial.”

Justice Scalia’s dissents were joined by Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito (Justice Alito also wrote a separate dissent in Cooper).

Scalia also delivered a rare oral dissent from the bench, complaining that “[t]oday's opinion opens a whole new field of constitutionalized criminal procedure: the field of plea-bargaining law,” and predicting that the courts would be flooded by new litigation.

The cases

In Lafler v. Cooper, No. 10-209 (March 21, 2012), a Michigan defendant faced four charges related to a shooting incident, including assault with intent to commit murder. Prosecutors offered to dismiss two counts, and recommend a total sentence of 51-85 months on the remaining two counts.

Prior to trial, the defendant admitted guilt and a willingness to accept the offer, but later rejected the offer when his attorney told him – incorrectly – that the prosecution could not prove intent to commit murder because the victim had been shot below the waist. After trial, the defendant was convicted on all counts, and sentenced to a minimum of 185 to 360 months.

Justice Kennedy’s majority opinion focused on the need for defendants to be provided with adequate legal advice and information in order to make crucial decisions about how and when to resolve their cases. 

“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more serious sentence,” Justice Kennedy wrote.

The opinion was less clear on what remedy courts should apply when a defendant clearly missed out on a favorable plea deal because of their lawyers’ mistake.

The Court offered some guidance to lower courts about what factors should be considered, but directed courts to exercise discretion to choose a remedy that can “neutralize the taint” of violation but not “grant a windfall to the defendant” or unduly waste the State’s previous efforts to prosecute.

In Missouri v. Frye, No. 10-444 (March 21, 2012), a Missouri man was charged with fourth-offense driving with a revoked license, a felony with a maximum 4-year sentence.

The prosecutor offered to reduce the charge to a misdemeanor and recommend a 90-day sentence, and set a deadline for Frye to accept the offer.

However, defense counsel did not convey the offer to Frye, and the offer expired when the deadline passed. Frye eventually pleaded guilty to the original charge without a plea agreement in place, and was sentenced to three years in prison.

Applying the same principles as Cooper, the Court found that counsel had been deficient by failing to inform his client of the offer, but remanded the case for a finding on whether the prosecution and the court would have honored the earlier, more favorable plea offer.

Uncertainty ahead

The Court's decisions in Frye and Cooper have generated an unusual amount of controversy because the consequences for criminal courts loom large, but the real impact is unclear.

The vast majority of criminal cases across the U.S. – approximately 95 percent – are resolved through the plea negotiation process, which is frequently informal, and which occurs largely outside of the courtroom. The numbers alone would seem to suggest a large increase in legal challenges by defendants claiming that they were not properly advised by their lawyers.

The decisions also appear to place a new responsibility on courts to supervise at least some aspects of the plea bargaining process, but provide no strict rules on how to do so. 

About the author

Brian Kinstler, a 2000 graduate of the University of Iowa College of Law, practices criminal defense in Wisconsin state and federal courts.