The constitutional right to a plea bargain

The Supreme Court  just rocked our criminal justice system:

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.

In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”

Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.

“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.

The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”

The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.

The court was considering two cases in which all parties agreed that the lawyers involved had failed their clients.

In one, Galin Edward Frye’s attorney never told him of plea bargain offers from Missouri prosecutors on charges that he was driving with a revoked license. He later pleaded guilty and was sentenced to three years in prison. Prosecutors had offered Frye a couple of deals, one of which would have required 10 days in jail.

In the other, Anthony Cooper was charged under Michigan law with assault with intent to murder and other charges after shooting Kali Mundy in the buttock, hip and abdomen. She survived the attack.

Prosecutors offered Cooper a deal of 51 to 85 months in prison in exchange for a guilty plea. Cooper turned down that and other offers, allegedly because his attorney told him he could not be found guilty of the attempted murder charge, because he had shot Mundy below the waist.

Cooper went to trial, was convicted and was sentenced to 15 to 30 years in prison.

In the Frye case, the majority held that “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.”

In Cooper’s case, the court said the “defendant who goes to trial instead of taking a more favorable plea” may be harmed by receiving “either a conviction on more serious counts or the imposition of a more severe sentence.”

The majority rejected the view of Scalia, the states and the Obama administration that any ineffective advice from Cooper’s attorney was remedied by what Scalia called “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true.”

That view, wrote Kennedy, “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

On one level, this ruling would seem to protect the guilty by opening up litigation possibilities that could a lot of imprisoned criminals free.  But I think it could also harm defendants who are accused but are innocent.

If we aren’t going to have trials, I suppose the alternative needs to be brought under constitutional principles, but aren’t we supposed to have trials, which have all of the rigorous rules of evidence and formalized protection of the defendants’ rights?  In plea bargains, defendants are manipulated to plead guilty for the price of a lesser sentence.  But what if they aren’t guilty?  Justice Kennedy’s statement, above, is chilling.

 

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • fws

    If it is true that 90% or so of sentencing in our justice system is the result of a plea bargain, then that really does require me to radically adjust my thinking about how our legal system actually works.

    This means, to me, that over time, we have adopted the rule of men rather than the rule of Law in our actual functioning as a society. it is rule by decree rather than rule by Law is what I am meaning here.

    I am not nearly so alarmed by the fact that the more liberal justices opened up this can of worms than I am by the more conservative justices deciding just to turn a completely blind eye, seemingly, to the practical consequences of this historical development.

    It would mean that guilt or innocence really does not matter at all. What matters is the processing efficiency of the judicial system. Very american that.

  • fws

    If it is true that 90% or so of sentencing in our justice system is the result of a plea bargain, then that really does require me to radically adjust my thinking about how our legal system actually works.

    This means, to me, that over time, we have adopted the rule of men rather than the rule of Law in our actual functioning as a society. it is rule by decree rather than rule by Law is what I am meaning here.

    I am not nearly so alarmed by the fact that the more liberal justices opened up this can of worms than I am by the more conservative justices deciding just to turn a completely blind eye, seemingly, to the practical consequences of this historical development.

    It would mean that guilt or innocence really does not matter at all. What matters is the processing efficiency of the judicial system. Very american that.

  • Eric Brown

    I don’t mind the first decision — if the lawyer does not inform the client of the plea bargain… that’s lousy. However, the second… well, the lawyer gave bad advice. Tough. Do we set people free because they have a lousy lawyer?

  • Eric Brown

    I don’t mind the first decision — if the lawyer does not inform the client of the plea bargain… that’s lousy. However, the second… well, the lawyer gave bad advice. Tough. Do we set people free because they have a lousy lawyer?

  • Michael B.

    “But what if they aren’t guilty? Justice Kennedy’s statement, above, is chilling.”

    I think there’s no question that there are a lot of innocent people in jail.

  • Michael B.

    “But what if they aren’t guilty? Justice Kennedy’s statement, above, is chilling.”

    I think there’s no question that there are a lot of innocent people in jail.

  • Steve Billingsley

    One of the reasons that there are so many plea bargains is that the courts are already overcrowded with dubious legal maneuvers. So this just creates a whole new class of litigation. Who wins in this scenario? Not necessarily the accused innocent or the criminal who gets off on a technicality (I doubt that the percentage of “correct” verdicts really changes all that much). Who really wins are trial lawyers. They now have a whole new set of motions, appeals and civil suits to line their pockets with. If you don’t think that trial lawyers are a powerful lobby, you haven’t paid much attention to politics in the last couple of generations.

  • Steve Billingsley

    One of the reasons that there are so many plea bargains is that the courts are already overcrowded with dubious legal maneuvers. So this just creates a whole new class of litigation. Who wins in this scenario? Not necessarily the accused innocent or the criminal who gets off on a technicality (I doubt that the percentage of “correct” verdicts really changes all that much). Who really wins are trial lawyers. They now have a whole new set of motions, appeals and civil suits to line their pockets with. If you don’t think that trial lawyers are a powerful lobby, you haven’t paid much attention to politics in the last couple of generations.

  • Tom Hering

    “Do we set people free because they have a lousy lawyer?”

    Yes, sometimes, in a retrial.

  • Tom Hering

    “Do we set people free because they have a lousy lawyer?”

    Yes, sometimes, in a retrial.

  • Kirk

    Did anyone think Shawshank Redemption when they read this? “Didn’t do it! Lawyer f****d me!”

  • Kirk

    Did anyone think Shawshank Redemption when they read this? “Didn’t do it! Lawyer f****d me!”

  • Joe

    The problem with this is (as highlighted by the second case) is that this is just second guessing. Despite the dramatic fashion in which the lawyer’s advice was portrayed, he told his client that he thought they had a good defense. That advice turned out to be wrong. But the lawyer talked with the client and the client made the decision. Now that it broke bad, the client wants a redo. That I can’t support.

    I have no problem with the other case. A lawyer is ethically bound to pass all settlement or plea bargain offers on to the client. The failure to pass the offer along is the problem. The client was never given the opportunity to accept or reject it.

  • Joe

    The problem with this is (as highlighted by the second case) is that this is just second guessing. Despite the dramatic fashion in which the lawyer’s advice was portrayed, he told his client that he thought they had a good defense. That advice turned out to be wrong. But the lawyer talked with the client and the client made the decision. Now that it broke bad, the client wants a redo. That I can’t support.

    I have no problem with the other case. A lawyer is ethically bound to pass all settlement or plea bargain offers on to the client. The failure to pass the offer along is the problem. The client was never given the opportunity to accept or reject it.

  • Jon

    What Joe said.

  • Jon

    What Joe said.

  • Random Lutheran

    This development has much to do with the need for prosecutors to have “wins” at whatever the cost to others, with no regard for truth or justice. They would rather plea someone out or down so they can put a tick down on the win side, so that when they run for higher office they can point to their sterling conviction rates. This is why they throw so much effort into opposing any case that might be overturned, justly or not, and why they love plea bargains so. Prosecutors need to be forced to actually do their jobs by making them go to trial; finding a way to keep them from using their offices as springboards would also be good for society.

  • Random Lutheran

    This development has much to do with the need for prosecutors to have “wins” at whatever the cost to others, with no regard for truth or justice. They would rather plea someone out or down so they can put a tick down on the win side, so that when they run for higher office they can point to their sterling conviction rates. This is why they throw so much effort into opposing any case that might be overturned, justly or not, and why they love plea bargains so. Prosecutors need to be forced to actually do their jobs by making them go to trial; finding a way to keep them from using their offices as springboards would also be good for society.

  • http://www.facebook.com/mesamike Mike Westfall

    We Americans have allowed the Supreme Court to take the “Supreme” part too seriously.

  • http://www.facebook.com/mesamike Mike Westfall

    We Americans have allowed the Supreme Court to take the “Supreme” part too seriously.

  • Jonathan

    The heading above gets its wrong: there has never been a constitutional right to a plea agreement, and these cases don’t change that fact. What they do is apply the protections of a right to effective counsel to the plea process. The rub here has always been the remedy: what to do when a defendant rejects a plea due to incompetent counsel, then gets convicted at trial, where he received good counsel, and received a harsher sentence than what the plea offered. Until now, the focus has been on the trial – was it fair? But now the courts will be able to fashion a remedy that may allow reinstatement of the plea. That’s a change. Pleas make up 90+ % of criminal convictions; our system would not survive without them. Defendants are always free to reject them and go to trial, provided the decision to reject isn’t based on incompetent counsel. These cases simply bring justice to reality.

  • Jonathan

    The heading above gets its wrong: there has never been a constitutional right to a plea agreement, and these cases don’t change that fact. What they do is apply the protections of a right to effective counsel to the plea process. The rub here has always been the remedy: what to do when a defendant rejects a plea due to incompetent counsel, then gets convicted at trial, where he received good counsel, and received a harsher sentence than what the plea offered. Until now, the focus has been on the trial – was it fair? But now the courts will be able to fashion a remedy that may allow reinstatement of the plea. That’s a change. Pleas make up 90+ % of criminal convictions; our system would not survive without them. Defendants are always free to reject them and go to trial, provided the decision to reject isn’t based on incompetent counsel. These cases simply bring justice to reality.

  • Kirk

    @12

    Except when the make rulings we like

  • Kirk

    @12

    Except when the make rulings we like

  • DonS

    Our system is so choked with drug cases that plea bargains have become standard. The problem is that prosecutors often severely overcharge a case so that the defendant is put in serious jeopardy if he/she decides to decline the plea offer and go to trial, to induce a plea.

    I agree with others above, including Joe @ 7, that the first case was decided properly and the second case was, based on reports without benefit of reviewing the entire prosecution file, an overreach by the Court that will lead to a lot of post-conviction second guessing. But there is no question that the system needs an overhaul. Innocent defendants should not feel pressure to plea to something they didn’t do because their risk of trial has been exacerbated by a prosecutor that overcharged the case to induce a plea.

  • DonS

    Our system is so choked with drug cases that plea bargains have become standard. The problem is that prosecutors often severely overcharge a case so that the defendant is put in serious jeopardy if he/she decides to decline the plea offer and go to trial, to induce a plea.

    I agree with others above, including Joe @ 7, that the first case was decided properly and the second case was, based on reports without benefit of reviewing the entire prosecution file, an overreach by the Court that will lead to a lot of post-conviction second guessing. But there is no question that the system needs an overhaul. Innocent defendants should not feel pressure to plea to something they didn’t do because their risk of trial has been exacerbated by a prosecutor that overcharged the case to induce a plea.

  • kerner

    I haven’t read the decision yet, but this does not seem to be that much of a stretch to me. The Supreme Court has found the right to counsel in a criminal case in the Bill of Rights, and it is clearly there. The Supreme Court held some time ago that, for the right to counsel to mean anything, the defendant must have the right to “the effective assistance of counsel”. Which is to say that there are certain standards that a lawyer must meet to fulfillo the defendant’s right to counsel. All the court seems to have done is to say that the right to effective assistance of counsel is in effect during negotiations as well as at trial. Given the fact that most cases settle, that doesn’t, as I said, seem like much of a stretch.

    And Dr. Veith, Oh Please! youe said:
    ” But what if they aren’t guilty?”

    You’re a Lutheran! Who, except for Jesus Christ, fits that description? In every criminal case the question is never whether the defendant is “guilty” in the broad sense, but only “what is this defendant guilty of?”. Almost always the defendant’s guilt falls under some statutory prohibition, which the state has often exagerated, hence the frequent settlements. Sometimes the evidence does not prove that the defendant’s guilt is a statutory violation, hence the very occasional trial.

  • kerner

    I haven’t read the decision yet, but this does not seem to be that much of a stretch to me. The Supreme Court has found the right to counsel in a criminal case in the Bill of Rights, and it is clearly there. The Supreme Court held some time ago that, for the right to counsel to mean anything, the defendant must have the right to “the effective assistance of counsel”. Which is to say that there are certain standards that a lawyer must meet to fulfillo the defendant’s right to counsel. All the court seems to have done is to say that the right to effective assistance of counsel is in effect during negotiations as well as at trial. Given the fact that most cases settle, that doesn’t, as I said, seem like much of a stretch.

    And Dr. Veith, Oh Please! youe said:
    ” But what if they aren’t guilty?”

    You’re a Lutheran! Who, except for Jesus Christ, fits that description? In every criminal case the question is never whether the defendant is “guilty” in the broad sense, but only “what is this defendant guilty of?”. Almost always the defendant’s guilt falls under some statutory prohibition, which the state has often exagerated, hence the frequent settlements. Sometimes the evidence does not prove that the defendant’s guilt is a statutory violation, hence the very occasional trial.

  • George A. Marquart

    I think Jonathan @11 has it absolutely right, and I admire the dispassionate manner in which he wrote it.

    A few additional thoughts:

    Statistics show that “incompetent counsel”, as a cause for appeal, is extremely difficult to prove and is almost always rejected by appeals courts.

    A number of cases have come to light recently in which the defendant was determined to be guilty in a trial, but later (in one case, I believe, after 22 years of incarceration) proven to be innocent. In most cases a plea bargain was offered and conveyed to the defendant, who rejected it because it required pleading guilty to the crime.

    An innocent person, who refuses to admit guilt, cannot be freed on parole. Conviction does not determine objective guilt, but only guilt as far as the system is concerned. Someone applying for parole must show remorse, regardless of whether that person is objectively innocent of the crime.

    The minority dissent reminds me of the fact that there are people who think that man is made for the Sabbath, rather than the Sabbath for man. In other words, the reality that more than 90% of all criminal cases are decided by plea bargain should be ignored, because the writers of the Constitution lived at a time when this was not true, and they did not foresee it. Scalia and co. are not concerned about justice, but about keeping the letter of the Law even when it invariably leads to injustice.

    To change the situation, so that the majority of defendants in criminal cases would go to trial, requires resources that are beyond our means. Just to fill juries would paralyze our economy.

    George A. Marquart

  • George A. Marquart

    I think Jonathan @11 has it absolutely right, and I admire the dispassionate manner in which he wrote it.

    A few additional thoughts:

    Statistics show that “incompetent counsel”, as a cause for appeal, is extremely difficult to prove and is almost always rejected by appeals courts.

    A number of cases have come to light recently in which the defendant was determined to be guilty in a trial, but later (in one case, I believe, after 22 years of incarceration) proven to be innocent. In most cases a plea bargain was offered and conveyed to the defendant, who rejected it because it required pleading guilty to the crime.

    An innocent person, who refuses to admit guilt, cannot be freed on parole. Conviction does not determine objective guilt, but only guilt as far as the system is concerned. Someone applying for parole must show remorse, regardless of whether that person is objectively innocent of the crime.

    The minority dissent reminds me of the fact that there are people who think that man is made for the Sabbath, rather than the Sabbath for man. In other words, the reality that more than 90% of all criminal cases are decided by plea bargain should be ignored, because the writers of the Constitution lived at a time when this was not true, and they did not foresee it. Scalia and co. are not concerned about justice, but about keeping the letter of the Law even when it invariably leads to injustice.

    To change the situation, so that the majority of defendants in criminal cases would go to trial, requires resources that are beyond our means. Just to fill juries would paralyze our economy.

    George A. Marquart

  • kerner

    I want to reiterate that many more “plea bargains” than most people realize are based on the strenght of the State’s case, not simply the expedient of avoiding the expense of trials. When you see someone pleading to a lesser charge that doesn’t seem to fit the facts, it is almost always because the State doesn’t think it can prove the original allegations, but they believe the defendant is guilty on some level, and they don’t want him to get off scott free.

    And, except in cases of mistaken identity, the defendant knows he is at least partially responsible for his predicament, so he goes along.

    Sometimes, the State is exercising its discretion, not wanting to ruin the defendant’s reputation or employment prospects, and is willing to modify the charges for the sake of an otherwise pro-social defendant (i.e. a 17 year old with a 15 year old girlfriend who is looking at being listed as a sexual predator for life, or a college kid who gets charged with felony burglary because he got drunk and stole a garden gnome out of a garage on a dare). In the information age, the permanent damage a felony conviction does to a person is far greater than it did 200 years ago.

    But this idea that prosecutors are just letting people out of jail willy nilly because they don’t want to take the time and make the effort to do their jobs is not based on reality. Not in any of the jurisdictions I practice in, anyway.

  • kerner

    I want to reiterate that many more “plea bargains” than most people realize are based on the strenght of the State’s case, not simply the expedient of avoiding the expense of trials. When you see someone pleading to a lesser charge that doesn’t seem to fit the facts, it is almost always because the State doesn’t think it can prove the original allegations, but they believe the defendant is guilty on some level, and they don’t want him to get off scott free.

    And, except in cases of mistaken identity, the defendant knows he is at least partially responsible for his predicament, so he goes along.

    Sometimes, the State is exercising its discretion, not wanting to ruin the defendant’s reputation or employment prospects, and is willing to modify the charges for the sake of an otherwise pro-social defendant (i.e. a 17 year old with a 15 year old girlfriend who is looking at being listed as a sexual predator for life, or a college kid who gets charged with felony burglary because he got drunk and stole a garden gnome out of a garage on a dare). In the information age, the permanent damage a felony conviction does to a person is far greater than it did 200 years ago.

    But this idea that prosecutors are just letting people out of jail willy nilly because they don’t want to take the time and make the effort to do their jobs is not based on reality. Not in any of the jurisdictions I practice in, anyway.

  • DonS

    George @ 15: “Scalia and co. are not concerned about justice, but about keeping the letter of the Law even when it invariably leads to injustice.”

    That’s a very uncharitable and judgmental statement. And a distortion as well.

    The dissent is looking at the entire judicial process, as a whole, and not at the optional plea bargaining portion of it separately. They have legitimate concerns that the majority ruling will strain available resources beyond the breaking point, resulting in worse injustice than is the case if an occasional defendant receives substandard advice during the optional plea bargaining phase of the process. That is a legitimate viewpoint, even though both you and I happen to disagree in this case. Public defenders are stretched beyond the limits, there are no more resources available, due to extreme government indebtedness at every level, and private defense counsel for indigent defendants when public defenders are unavailable are difficult to obtain because of the extremely low rates that the government can pay.

    The discussion is more fruitful when we engage the issues and balance them thoughtfully, as was done in this case, rather than to accuse the other side of ill will or small mindedness.

  • DonS

    George @ 15: “Scalia and co. are not concerned about justice, but about keeping the letter of the Law even when it invariably leads to injustice.”

    That’s a very uncharitable and judgmental statement. And a distortion as well.

    The dissent is looking at the entire judicial process, as a whole, and not at the optional plea bargaining portion of it separately. They have legitimate concerns that the majority ruling will strain available resources beyond the breaking point, resulting in worse injustice than is the case if an occasional defendant receives substandard advice during the optional plea bargaining phase of the process. That is a legitimate viewpoint, even though both you and I happen to disagree in this case. Public defenders are stretched beyond the limits, there are no more resources available, due to extreme government indebtedness at every level, and private defense counsel for indigent defendants when public defenders are unavailable are difficult to obtain because of the extremely low rates that the government can pay.

    The discussion is more fruitful when we engage the issues and balance them thoughtfully, as was done in this case, rather than to accuse the other side of ill will or small mindedness.

  • http://www.redeemedrambling.blogspot.com/ John

    I think the majority decision reflects a concern for principle, while the dissent reflects a concern for pragmatism. Both are necessary tensions, but I tend to agree with the decision here. I am not a lawyer, however, which may be why I can’t grasp the logic of the second case.

  • http://www.redeemedrambling.blogspot.com/ John

    I think the majority decision reflects a concern for principle, while the dissent reflects a concern for pragmatism. Both are necessary tensions, but I tend to agree with the decision here. I am not a lawyer, however, which may be why I can’t grasp the logic of the second case.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “I think there’s no question that there are a lot of innocent people in jail.”

    Why?

    Interesting article on criminality. Women can’t spot rapists but men can.

    http://www.psychologytoday.com/blog/the-scientific-fundamentalist/201103/criminals-look-different-noncriminals

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “I think there’s no question that there are a lot of innocent people in jail.”

    Why?

    Interesting article on criminality. Women can’t spot rapists but men can.

    http://www.psychologytoday.com/blog/the-scientific-fundamentalist/201103/criminals-look-different-noncriminals

  • kayla crist

    If u took aplea bathing for two years five years probation is there. Any way that that judge could give me a deffered sentence its my frist time getting