Opinion analysis: Expanding the right to effective counsel during the plea-bargaining process

“[C]riminal justice today is for the most part a system of pleas, not a system of trials.”

On Wednesday a sharply divided Court issued companion decisions that will have significant systemic implications for the criminal plea-bargaining process.  In Missouri v. Frye and Lafler v. Cooper, the Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice.  Writing for a five-four majority in each case, Justice Anthony M. Kennedy reasoned that the right to counsel extends to the plea-bargaining process because of the “simple reality” that plea bargaining is so pervasive in our system such that the negotiation of a plea “is almost always the critical point for a defendant.”

Justice Antonin Scalia, who pointedly read a summary of his dissenting opinions in both cases from the bench, called the decisions “inconsistent with the Sixth Amendment and decades of our precedent.”  The four dissenting Justices also criticized the majority for failing to define the parameters of the governing legal standards, which they predicted will result in many years of litigation in the “newly created constitutional field of plea-bargaining law.”

Ineffective failure to communicate a plea offer

In Frye, a lawyer failed to inform his client of the prosecution’s plea offers.  After the offers expired, the defendant pleaded guilty (without a plea deal) and received a substantially longer sentence than the ones in the lapsed offers.  Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, framed the questions presented as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected” and, if so, “what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance.”

Justice Kennedy answered the first question with a resounding yes.  “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  “Because ours ‘is for the most part a system of pleas, not a system of trials,’” Justice Kennedy reasoned, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

To show prejudice from ineffective assistance, the majority held that “defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”

Applying these standards to defendant Frye, the majority concluded that defense counsel’s performance was deficient because the record showed that he failed to inform Frye of written plea offers before they lapsed.  As for prejudice, the majority stated that “[t]here appears to be a reasonable probability Frye would have accepted the prosecutor’s original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor.”  But the majority found that the lower court had failed to require the defendant to show “that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court,” which were questions of state law that the majority left to the lower court to determine on remand.

Justice Scalia, joined by Chief Justice John G. Roberts, Jr. and Justices Clarence Thomas and Samuel Alito, Jr., dissented.  According to the dissent, the defendant’s voluntary guilty plea was “untainted by attorney error,” which “should be the end of the matter.”  Justice Scalia also criticized the majority for failing to confront “the serious difficulties that will be created by constitutionalization of the plea-bargaining process.”  The dissent characterized the majority’s largely undefined legal standard as requiring “retrospective crystal-ball gazing posing as legal analysis,” which will confound lower courts and result in a flood of litigation.

Ineffective advice leading to rejection of plea offer

In Lafler, the companion five-four decision also authored by Justice Kennedy, the Court again recognized the right to effective counsel during the plea process, but in a different context.  Whereas in Frye, “defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty,” in Lafler “the favorable plea offer was reported to the client but, on [the erroneous] advice of counsel, was rejected.  In Frye there was a later guilty plea.  [In Lafler], after the plea offer had been rejected, there was a full and fair trial before a jury,” resulting in a harsher sentence than the one prosecutors had offered in the rejected plea deal.

Because the parties agreed that defense counsel’s advice fell below the standard of adequate assistance, the majority focused on the standards for prejudice and the appropriate remedy.  The majority held that “a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), 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 judgment and sentence that in fact were imposed.”  The majority rejected the argument that a “fair trial wipes clean any deficient performance by defense counsel during plea bargaining.  That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

The remedy

The majority in Lafler then turned to the “question of what constitutes an appropriate remedy.”  Justice Kennedy wrote that the remedy must “neutralize the taint” of the constitutional violation, but not grant a “windfall” to the defendant.  The majority found that in some situations, the trial court could conduct an evidentiary hearing and exercise its discretion in re-sentencing the defendant.  In other situations, such as where a mandatory sentence constrains a court’s discretion to re-sentence, the majority found that the circumstances may require “the prosecution to reoffer the plea proposal.  Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”  In deciding whether to do so, “the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here.”  The majority remanded the case so that the lower court could order the state to re-offer the plea bargain, and the court could then exercise its discretion in determining whether to vacate the conviction and re-sentence the defendant under the prior plea bargain or leave the conviction undisturbed.

Justice Scalia, joined by Chief Justice Roberts (on all but the last part of the dissenting opinion) and Justice Thomas, criticized the majority for opening “a whole new field of constitutionalized criminal procedure:  plea-bargaining law.”  He wrote that the Sixth Amendment does not cover the plea-bargaining process as a whole.  The majority’s remedy, moreover, is “unheard-of in American jurisprudence.”  Justice Scalia also found the remedy “incoheren[t]” given that it permits the trial court to simply reject the prior plea.  In the dissent’s view, “[t]he 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.”  The dissent found it “extraordinary” that “the remedy for an unconstitutional conviction should ever be subject at all to a trial judge’s discretion.  Or . . . that the remedy could ever include no remedy at all.”

Finally, Justice Alito authored a separate dissenting opinion, in which he agreed with the heart of Justice Scalia’s dissent and noted that the “weakness in the Court’s analysis is highlighted by its opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal representation.”

The majority and dissenting opinions in Frye and Lafler are noteworthy because both sides based their opinions largely on practical considerations.  The majority, which in both cases cited statistics about the prevalence of plea bargaining in our system, found Sixth Amendment protection necessary because of the “simple reality” that our system is largely not one of trials, but one of pleas.  For the dissent, the guiding practical concern was the difficulties that inevitably will arise given that the majority did not flesh out the legal standards to use when applying its decisions.

The two cases all but ensure future litigation as lower courts work out the nuances of when plea advice is constitutionally ineffective, the factors and methods by which trial courts determine prejudice, and the scope of the remedy.  Whereas the dissent predicts a floodgate of frivolous claims of lapsed or rejected pleas and lower court confusion over the proper standards, the majority suggests that existing standards will provide adequate guidance and ferret out frivolous claims and, if not, the decision will lead to some needed formal guidelines and oversight of the plea-bargaining process.  The reality probably falls somewhere in between.  But as Justice Alito noted, only “[t]ime will tell how this works out.”