Criminal Law Case Comment 126 Harv. L. Rev. 150

Incompetent Plea Bargaining and Extrajudicial Reforms


For many years, plea bargaining has been a gray market. Courts are rarely involved, leaving prosecutors unconstrained by judges or juries. Prosecutor’s plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel’s competence, compensation, and zeal. And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively.

Nevertheless, criminal procedure has long focused on jury trials. Even though guilty pleas resolve roughly ninety-five percent of adjudicated criminal cases, the Supreme Court has usually treated plea bargaining as an afterthought, doing little to regulate it. When it has regulated pleas, the Court has largely focused on the procedures for waiving trial rights, not the substantive pros and cons of striking a deal. This past Term, the Court for the first time addressed how the Sixth Amendment’s guarantee of effective assistance of counsel applies to defendants who reject bargains and receive heavier sentences after fair trials. In Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Court held that ineffectiveness that leads defendants to reject plea bargains can satisfy both the performance and prejudice prongs of Strickland v. Washington. Incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment.

The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. The dissenters would have limited the Sixth Amendment to the jury trials with which the Framers were concerned and proceedings ancillary to those trials. As Justice Scalia put it at oral argument, a jury trial is “the 24-karat test of fairness,” and defendants who fail to plead guilty cannot complain that they received “the best thing [that] our legal system” has to offer. Justice Kennedy’s majority opinions, by contrast, rested heavily on the dominance of plea bargaining today and its central role in setting sentences as well as convictions. Even a fair trial cannot wipe away an earlier tactical decision that results in a much longer sentence after trial.

Belatedly, the Court noticed that “ours ‘is for the most part a system of pleas, not a system of trials.’” The Court, like Rip Van Winkle, has at last awoken from its long slumber and sees the vast field it has left all but unregulated. Justice Scalia, in dissent, repeatedly assailed the majority for “open[ing] a whole new field of . . . plea-bargaining law,” but it is about time. Now the big question is which institutions can and will ameliorate poor defense lawyering retrospectively or prospectively. The upshot, I predict, will depend on semi-private ordering: few reversals in court, but much more prospective extrajudicial reform.

Lafler and Frye will not cause courts of appeals to invalidate many convictions for constitutional error. Courts are poorly equipped to remedy woefully inadequate defense lawyering on their own. Plea bargaining creates little record, after-the-fact review is cumbersome and expensive, and courts are reluctant to reverse final judgments, intrude on prosecutor’s prerogatives to bargain, or subject defense counsel’s performance to searching review. Lafler and Frye will loosen these cautions a bit but will not open the floodgates. Moreover, judges cannot fix the massive underfunding and overwork that plague indigent defense counsel. The good news is that Lafler and Frye will probably have much bigger effects indirectly, in prompting solutions beyond the courts. Plea bargaining’s semiprivatized justice is best suited to semiprivatized remedies and reforms, backstopped by judges but driven by other actors. Other actors have the incentives and power to achieve, prospectively and flexibly, much that after-the-fact judicial review cannot. In the real world of plea bargaining, the partie’s stances are no longer antagonistic. Counterintuitively, even prosecutors and defendants have strong incentives to collaborate in explaining, promoting, and bulletproofing plea bargains.

Part I summarizes the facts and opinions in Lafler and Frye. The majority’s contemporary, functional analysis rested upon the dominance of plea bargaining today, while the dissenter’s formalistic logic idealized the historical jury trial as the Sixth Amendment’s exclusive concern. Part II is largely descriptive and predictive, explaining why judges are unlikely to overturn many convictions for violating Lafler and Frye. Though these decisions should apply retroactively even on federal habeas review, in practice courts will overturn few pleas, as defense lawyer’s bad advice is hard to prove and judges are understandably skeptical of postconviction appeals. Finally, Part III begins with prediction and analysis and ends with normative assessment of Lafler and Frye’s extrajudicial effects. It predicts that nonjudicial actors (especially prosecutors) will do much to solve plea bargaining’s problems prospectively, explains why they have the incentives to do so, describes how they can do it, and finally praises these developments. While courts can do little on their own, they can create incentives for other market participants to explain offers and shore up their bargains.