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.