U.S. Supreme Court

Dissenting in Two Decisions, Scalia Hits New 'Constitutional Right to Effective Plea Bargainers'

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Defendants who reject or pass up plea bargains because their lawyers provided ineffective assistance of counsel may have their subsequent, harsher sentences overturned, the U.S. Supreme Court has ruled in two cases.

Justice Anthony M. Kennedy wrote both opinions for a five-justice majority. One case involved a lawyer who never communicated a plea offer to his client, and the other involved a lawyer who advised the client to reject a favorable plea based on an incorrect interpretation of the law.

Justice Antonin Scalia read aloud from his dissents, in which he criticized the new “constitutional right to effective plea-bargainers” and the majority’s “quite absurd” remedies. The court “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’) without even specifying the remedies the boutique offers,” he complained.

In previous opinions, the court had ruled that the right to effective counsel applies to the acceptance of plea offers and guilty pleas. The two cases decided by the Supreme Court on Wednesday involved defendants who didn’t take plea deals.

In Missouri v. Frye, the defendant Galin Frye pleaded guilty to a felony for a repeat offense of driving without a license without knowing that prosecutors had offered a plea bargain that reduced the charge to a misdemeanor.

“This court now holds that, as 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,” Kennedy wrote in his opinion (PDF). “When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” His opinion cites ABA Standards for Criminal Justice, saying they can be “important guides” to standards of counsel performance.

Defendants seeking a remedy will have to show they would have accepted the plea bargain absent the ineffective assistance, as well as a reasonable probability that prosecutors would have adhered to the deal and a judge would have accepted it. It’s unclear whether Frye’s plea would have been allowed, since he was arrested yet another time for driving without a license, Kennedy said. He remanded the case for a determination.

In the other case, Lafler v. Cooper, Anthony Cooper was convicted of assault with intent to murder after his lawyer advised rejecting a favorable plea offer. Cooper’s sentence was more than three times the sentence he likely would have received under the plea bargain. According to the inmate’s habeas petition, the lawyer wrongly advised Cooper that the prosecution would be unable to establish intent to murder because the shots he fired hit the victim below the waist.

The government had claimed that attorney errors before trial don’t implicate the Sixth Amendment unless they affect the fairness of trial. “The Sixth Amendment, however, is not so narrow in its reach,” Kennedy wrote in the opinion (PDF).

The state’s arguments, Kennedy said, “amount to one general contention: 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. Ninety-seven percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.”

Kennedy said resentencing may be an option for defendants given a stiffer sentence after declining a plea offer due to ineffective assistance. In other cases, the prosecution may be required to reoffer the plea proposal.

Justice Antonin Scalia read aloud from his dissents in both cases. “Today,” he wrote in Lafler, “the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. … The court today embraces the sporting-chance theory of criminal law, in which the state functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the justices of the Supreme Court.”

Prior coverage:

ABAJournal.com: “ABA Urges Supreme Court to Find a Right to Effective Assistance in Plea Bargains”

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