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The US Supreme Court on plea bargaining

By Richard Lippke

Are individuals entitled to effective assistance of legal counsel as they decide whether or not to enter guilty pleas instead of going to trial? In two recent decisions by the US Supreme Court, a narrow majority of the Court said “yes”.

In the Lafler v Cooper and Missouri v Frye cases, defendants whose attorneys had almost comically failed to represent them adequately during plea negotiations challenged the longer sentences they received as a consequence of their attorneys’ bunglings. The defendant in Lafler rejected a plea deal when his attorney advised him that the state couldn’t convict him of murder because the defendant’s victim had been shot below the waist. The defendant was later convicted at trial and received a sentence considerably longer than the one the prosecutor offered him in exchange for a guilty plea. In Frye, the defendant’s attorney simply failed to notify him that the prosecution had proposed a favorable plea deal, with the result being that the defendant subsequently pled guilty in exchange for a much less favorable one. Acknowledging that the US criminal justice system is now a “system of pleas” (97% of cases are so resolved) rather than one in which trials are provided for defendants, a majority on the Court, led by Justice Anthony Kennedy, held that the defendants in question should have some remedy given their attorneys’ missteps. But the Court held that hearings should be conducted at which lower court judges would determine that remedy.

The four dissenting justices, let by Antonin Scalia, argued vigorously that there is no Constitutional right to plea deals and that the right to effective assistance of counsel applies primarily to defendants who go to trial. The US Constitution is silent about plea bargaining and it is a largely unregulated procedure, though the dissenters indicated that they would not be averse to having elected legislators regulate it more closely. The dissenters also warned that figuring out what “effective assistance” means in the plea bargaining context might prove exceedingly difficult once obvious cases of defense counsel ineptitude are ruled out. Interestingly, Scalia offered several caustic comments about the sort of “bargain justice” that plea bargaining produces, though without suggesting that it should be eliminated.

What are we to make of all of this?

It is hard not to be sympathetic to both the majority’s claim that defendants ought to receive effective assistance during plea bargaining and to the dissent’s claim that figuring out what that means during plea negotiations and remedying failures in it will prove difficult. In particular, determining what defendants, and then prosecutors and judges, would have done had defendants been given better, or just different, advice by their attorneys, will require the lower courts to engage in considerable soothsaying.

Should criminal justice outcomes be negotiated in the ways that the US plea bargaining system allows?

This is the larger question, largely unaddressed in the recent decisions. Prosecutors there have enormous discretion to cut deals as compared with their counterparts in other countries. US prosecutors more or less unilaterally decide which charges to lodge or drop against individuals. They thus routinely over-charge individuals and offer charge reductions in exchange for guilty pleas. They can also offer lenient sentencing recommendations to induce pleas, and threaten substantial trial penalties (in the form of harsh sentencing recommendations) if defendants reject plea offers, go to trial, and are convicted. All of these tools enable prosecutors to pressure defendants to plead guilty, mainly by opening up vast sentencing differentials between what defendants receive if they plead guilty versus go to trial and are convicted. No wonder very few defendants exercise their right to trial. In other countries, the charging discretion of prosecutors is more limited, trial penalties are unheard of, and sentence discounts are either fixed or less subject to manipulation. Not much, or not very much, actual bargaining goes on, though trials remain rare or, where they are not, are more perfunctory if defendants admit their guilt.

Why should we care about the discretion US prosecutors have to manipulate sentence differentials?

The answer to this question is fairly straightforward: Substantial sentencing differentials pressure — some would say coerce — defendants to plead guilty regardless of the strength of the government’s evidence of their guilt and whether or not defendants are actually guilty as charged. If as a defendant I face the difference between probation or a brief stint in prison and a five-year prison term, I might plead guilty simply to avoid the much worse outcome, even if my attorney advises me that the state’s case against me is thin. Trials are just too risky, a point that critics of US-style plea bargaining have been making for years. That brings us to a different question…

 Why should the Supreme Court care more about the structure of plea bargaining in the US given certain salient features of that country’s Constitution?

The answer I would give is this: We insist that defendants should have the presumption of innocence, the burden of proof should be on the government, and the standard it should meet to convince juries is high—beyond a reasonable doubt—because we want moral assurance that when we inflict punishment on individuals, we do so justifiably. Trials are ordeals not just for defendants but also, and more importantly, for government officials. And they should be. Plea bargaining should be troubling to the Court because it permits those officials to gain guilty pleas morally (and otherwise) on the cheap.

If we are to bring plea bargaining in line with the US Constitution, we need to do two things:

(1) Significantly reduce the tools prosecutors have to inflate the sentencing differential between guilty pleas and trial convictions.
(2) Insist that judges take more active roles in scrutinizing the evidence for charges before defendants are allowed to enter guilty pleas. Only by doing these things can we gain some greater assurance that when defendants admit their guilt, they do so because the state’s evidence against them is substantial.  Once we have that assurance, we can inflict punishment on individuals who enter guilty pleas in good conscience.

Richard Lippke is a Senior Scholar in the Department of Criminal Justice at Indiana University, USA. He is the author of The Ethics of Plea Bargaining (OUP 2011).

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