Toward a Jurisprudence of Plea Bargaining Defense

The above scene from David Simon’s masterpiece The Wire shows Levy, an attorney for a drug cartel, at the top of his game, negotiating a structured plea for drug kingpins. It’s only one of several examples of media representations of plea bargains, which tend to highlight the ingenuity of defense attorneys who use their experience and savvy to get their client off as cheaply as possible. But is this representation true to the quality of defense provided to clients thinking on whether to take a plea bargain?

Last week, the Supreme Court decided Lafler v. Cooper and Missouri v. Frye, which bring up issues pertaining to the quality of defense counsel in the context of plea bargaining. In Lafler, the defense attorney advised the client not to take the plea, supposedly by convincing him that the prosecution would not be able to prove intent to kill given that the defendant shot the victim below the waist. Both parties agreed that this advice was deficient; the client took his attorney’s advice and ended up convicted of murder and sentenced to a lengthy mandatory minimum. In Frye, defendant was charged with driving with a revoked license and had one prior. The prosecutor conveyed two possible plea bargains, one of them including a misdemeanor charge in lieu of a felony charge; the lawyer failed to communicate the offers to Frye, and a week before the preliminary hearing, Frye was caught driving with a revoked license again. He pled guilty to a felony with no underlying agreement and was sentenced to three years in prison; on appeal, he argued that, had he known of the offer, he would have pled guilty to the misdemeanor and would therefore not be convicted of the felony.

To understand the decisions in Lafler and Frye, it’s a good idea to provide a bit of background on quality of defense, an issue we’ve tackled here before. Arguments about ineffective assistance of counsel often come up on appeal and in habeas corpus proceedings, where they serve as gatekeepers for other arguments; for example, since Fourth Amendment arguments are not allowed in habeas proceedings, petitioners will often argue ineffective assistance of counsel instead, thus bringing the Fourth Amendment argument in through the back door (e.g., rather than “the cops had no warrant to search my home”, the argument would be, “my lawyer was so deficient that he didn’t try to suppress the evidence the cops found in my home with no warrant.”) But arguing ineffective assistance is tricky. Under Strickland v. Washington (1984), the appellant or petitioner has to prove two things: That the attorney did such a poor job that it falls below a minimum of competence (“the performance prong”), and that had the attorney provided competent services, the outcome of the trial would be different (“the prejudice prong”).

Both of these arguments are very difficult to make. The Court has repeatedly ruled that defense work is art, not science, and excused many examples of abysmal lawyerly performance as “strategy”. The Court has also often assumed that even an improved performance by the attorney would not change the result of the trial, thus making the argument more difficult.

Recently, the Supreme Court seems more concerned with the quality of defense, and with good reason. In Padilla v. Kentucky (2010), the court ruled that advising a Green-Card-holding client to take a plea whose collateral consequence could be deportation is inefficient assistance of counsel. Last week’s decisions are a continuation of this trend, and great news in two important ways. First, they raise the standard of performance for defense attorneys. And second, they bring plea-bargaining defense–a huge deal of what defense attorneys actually do–from the shadows into the light, and require accountability for professional dealings in the plea bargaining context.

The problem Lafler faced was convincing the court that his failure to accept the plea bargain was prejudicial. The government made an effort to argue that the trial Lafler received was fair, but the Court argued that defendants are guaranteed efficient assistance of counsel even in pretrial stages, including during plea bargaining. The government, and lower courts, also maintained that after having rejected the plea bargain Lafler received a fair trial, which eliminates any gripes he might have about the plea bargain process. But such an interpretation, said Justice Kennedy, ignores the reality of criminal practice, in which the vast majority of cases are settled via plea bargain. Fixing this problem is tricky; you can’t merely resentence the defendant, as he might have been charged with a less severe offense had he taken the plea. So, the correct solution is for the state to re-offer the plea, and for the defendant to consider anew whether to take it.

This understanding of the basic duties of defense attorneys in the plea bargaining process is repeated in Frye, where the Court yet again highlights that the duty to provide effective assistance pertains to all critical stages of the criminal process, not just criminal trials. How, then, is prejudice to be judged? An older case, Hill, requires that the defendant show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” But that’s not the only path for prejudice; in Frye, the defendant shows that, but for counsel’s errors, he would have actually taken the earlier plea. Because of the subsequent offense, though, Frye might face some challenges showing that the prosecution would not have withdrawn the plea upon hearing of the new arrest.

The remarkable thing about the decisions is their willingness to talk about the plea bargaining process as one that requires competence and professionalism, and to provide defendants with relief when their plea bargaining was botched by faulty defense attorney performance. This is hugely important, as much socio-legal research shows that an important reason why people plead guilty is pressure by defense attorneys. While prosecutors have an immense amount of discretion in charging, and therefore many bargaining chips during the negotiation process, defense attorneys play a huge role in interpreting the bargain and bringing the clients to agree to the plea. This process, largely unregulated so far, will now attract more attention and scrutiny. And that is a very, very good thing.

Both decisions were given as an unsurprising 5-4 majority, with Justice Kennedy writing for the majority and supported by Justices Breyer, Ginsburg, Kagan, and Sotomayor. Justice Scalia wrote resentful dissents about the creation of a new “jurisprudence of plea bargains.” Well, it’s about time. Since 94-97% of all trials end in plea bargains, where else should we focus our efforts when attempting to raise the bar for quality defense lawyering?

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Props to Rory Little and Amanda Leaf for motivating me to write this post, and to Dmitry Stadlin for our conversations about plea bargains in popular culture.