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Academic round-up

The Supreme Court is scheduled to hear two cases next Term on the question whether whether a criminal defendant is entitled to a  remedy for defense counsel’s inadequate performance during plea bargaining if the defendant ultimately enters a voluntary, knowing, and intelligent plea, or if the defendant is convicted after a fair trial.

In Lafler v. Cooper, the court of appeals held that defense counsel was ineffective for counseling Cooper to reject a plea bargain in the mistaken belief that Cooper could not be convicted of assault with intent to murder.  (Oddly, defense counsel believed that because the bullets entered the victim’s body below the waist, the state could not prove intent to kill.  As the Sixth Circuit dryly noted, “[c]ounsel was wrong.”)  Cooper was convicted at trial and he received a sentence approximately ten times longer than the plea offer.  The prosecution argued that because Cooper received a fair trial, he has no Sixth Amendment claim for ineffective assistance at the plea bargaining stage.

In Missouri v. Frye, defense counsel failed to inform his client of the prosecution’s plea offer of 10 days in jail.  Frye eventually entered a guilty plea and was sentenced to three years of incarceration.   As in Cooper, the prosecution asserts that a defendant has no remedy for ineffective counsel at the plea bargain stage in a case in which the defendant ultimately enters into a voluntary, knowing, and intelligent guilty plea.

Some interesting recent scholarship addresses hard questions about plea bargaining—a subject that has gotten more attention since the Court held in Padilla v. Kentucky that defense counsel has a constitutional obligation to inform a defendant of the “succinct, clear, and explicit” immigration consequences of pleading guilty.  Professor Jenny Roberts, whose thoughtful scholarship on these questions was cited by the Supreme Court in Padilla, has just posted an article on SSRN arguing that the “prejudice” prong of the two-pronged ineffective assistance of counsel test must expand to accommodate the reality that most cases end in a guilty plea, not a trial.  Professor Roberts criticizes those courts that view prejudice entirely through the lens of trials—for example, by finding prejudice only if the defendant would have opted to go to trial had he been properly advised at the plea bargaining stage.  Roberts argues that prejudice also exists if the defendant would likely have negotiated for a better deal had he been privy to the relevant information, as would be true in Missouri v. Frye.   Professor Roberts concludes that this broader conception of “prejudice” better accords with a criminal justice system in which plea bargains are the norm, and trials the rare exception.

In an article to be published in the California Law Review, Professor Stephanos Bibas addresses similar questions and, like Professor Roberts, concludes that courts must be careful not to view trials as the norm when analyzing counsel’s performance at the plea bargaining stage.  According to Bibas, courts and legislatures would do better to look outside criminal law altogether when thinking about plea bargaining, and should instead refer to consumer protection law as a source of guidance.  Consumers benefit from legislation that mandates disclosure of relevant information, bars misleading sales tactics, and provides for “cooling off” periods during which a buyer has a limited amount of time to rescind a purchase.  Professor Bibas advocates similar protections for criminal defendants facing the all-important question of whether to accept a plea.  He notes that it “is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment.”

Finally, Professor Bibas makes the interesting claim that the addition to two former prosecutors to the Court – Justices Alito and Sotomayor – may have inspired the Court to take a more realistic approach to plea bargaining.

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Jun. 3, 2011, 10:30 AM),