SCOTUS Requires Effective Assistance at Plea Bargain Stage: Absurd?

Today, the Supreme Court released two opinions that define standards for defense lawyers during criminal plea bargains.

First, in Lafler v. Cooper, No. 10-209, 566 U.S. ___ (2012), recall that Cooper was charged with assault with intent to murder and possession of a firearm. Cooper rejected a plea bargain after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted after a trial and received a harsher sentence than the original plea bargain.

In a five to four decision, the Court vacated the lower court’s decision and held: “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”

Justice Kennedy, relying on Missouri v. Frye, an opinion also released today, explained that:

“the right to adequate assistance of counsel cannot be defined or enforced without taking into account of the central role plea bargaining plays in securing convictions and determining sentences.”

Justice Kennedy was supported by Justices Ginsburg, Breyer, Sotomayor and Kagan.

Next, in Missouri v. Frye, No. 10-444, Frye was not informed of favorable plea offers before he pled guilty to driving with a revoked license. He was later sentenced to three years in prison—a sentence much harsher than the plea offers.

In another split decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and applies to “all ‘critical’ stages of the criminal proceedings.”

This holding concerned Justice Scalia, who was joined in his dissent by Chief Justice Roberts and Justice Alito: “While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland requires) is not. The Court’s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process.”

In addition to written opposition to the Court’s holding, Justice Scalia reportedly gave an oral dissent, referring to the majority decision as “absurd” and “unheard-of.”

In short, both decisions clearly recognize a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage, even though there is no constitutional right to a plea bargain.