In Lafler v. Cooper, the Supreme Court “opens a whole new field of constitutionalized criminal procedure: plea-bargaining law.”

March 21st, 2012

Lafler v. Cooper, and its companion case Missouri v. Frye, open the door to a whole new host of criminal appeals–challenging effectiveness of counsel during the plea-bargaining stage.

Here is how Justice Kennedy describes it, for the majority in Lafler:

In this case, as in Missouri v. Frye, ante, p. ___, also decided today, a criminal defendant seeks a remedy when inadequate assistance of counsel caused nonacceptance ofa plea offer and further proceedings led to a less favorable outcome. In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the clientbut, on advice of counsel, was rejected. In Frye there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment. . . . The question for this Court is how to apply Strickland’s prejudice test where ineffective assistance results in a re- jection of the plea offer and the defendant is convicted atthe ensuing trial.

In Frye, Kennedy gives credence to the state’s argument that plea agreements are negotiated off the record, and “it is unfair to subject [the state] to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here,for a later guilty plea albeit on less favorable terms, are preserved.” Ultimately though, the Court rejects this argument, noting that 97% of cases end up in a plea:

it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here,for a later guilty plea albeit on less favorable terms, are preserved. . . . In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that aplea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).

And, god said, let there be a new right.

And what are the contours of this right to effective assistance during the plea bargain? The court asks the 9th Circuit to define it–err, says it does not need to define it today (in other words, let the 9th Circuit define it tomorrow).

The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediatejudicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature,defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the properdischarge of defense counsel’s participation in the process. Cf. ibid. This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer toaccept a plea on terms and conditions that may result in alesser sentence, a conviction on lesser charges, or both.

This Court now holds that, as a general rule, defensecounsel has the duty to communicate formal offers fromthe prosecution to accept a plea on terms and conditionsthat may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. 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 Laffler, the Court is more open-ended:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counseland then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the pleabargain are the same as the charges the defendant wasconvicted of after trial. In this situation the court mayconduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but forcounsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or countsless serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines ajudge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional

injury may be to require the prosecution to reoffer the pleaproposal. Once this has occurred, the judge can thenexercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
In implementing a remedy in both of these situations,the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion.

At this point, however, it suffices to note two considerations that are of relevance.
First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is re- quired to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to theprecise positions they occupied prior to the rejection of theplea offer, but that baseline can be consulted in finding aremedy that does not require the prosecution to incur theexpense of conducting a new trial.

And, from Frye, how would one show prejudice?

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have acceptedthe earlier plea offer had they been afforded effectiveassistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial courtrefusing to accept it, if they had the authority to exercisethat discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process wouldhave been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Lafler presents a slightly different situation where the defendant was ultimately convicted by a jury. In such a case, the United States argues that there can be no Strickland prejudice.

Theycontend there can be no finding of Strickland prejudicearising from plea bargaining if the defendant is later convicted at a fair trial. The three reasons petitioner and the Solicitor General offer for their approach are unpersuasive. . . . In the instant case respondent went to trial rather thanaccept a plea deal, and it is conceded this was the result ofineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have receivedby pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes totrial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence

The Court n Lafler poo-poos concerns that this opinion opens the floodgates:

Petitioner argues that implementing a remedy here willopen the floodgates to litigation by defendants seeking to unsettle their convictions. See Brief for Petitioner 20. Petitioner’s concern is misplaced. Courts have recognizedclaims of this sort for over 30 years, see supra, at 5, and yet there is no indication that the system is overwhelmed by these types of suits or that defendants are receiving windfalls as a result of strategically timed Strickland claims. See also Padilla, 559 U. S., at ___ (slip op., at 14) (“We confronted a similar ‘floodgates’ concern in Hill,” but a “flood did not follow in that decision’s wake”). In addition, the “prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction.” Frye, ante, at 10. See also ibid. (listing procedures currently used by various States). This, too, will help ensure against meritless claims.

Back in Frye, the Court “suggests” a number of assurances prosecutors can (and now, will *have to*) adopt:

The prosecution and the trial courts may adopt somemeasures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer hasbeen accepted or after a trial leading to conviction withresulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation processbecomes more clear if some later inquiry turns on theconduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor shall be in writingand forwarded to the defendant’s attorney”). Third, formal offers can be made part of the record at any subsequentplea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before thosefurther proceedings commence.

Now, for a Nino dissent (which he apparently read from the bench, for quite a while). Thomas joined his dissent in full, and the Chief joined all but Part IV. Alito joined none.

With those words from this and the companion case, the Court today opens a whole new field of constitutionalizedcriminal procedure: plea-bargaining law. The ordinarycriminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of anintricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965). The Court now moves to bring perfection to the alternative in which prosecutorsand defendants have sought relief. Today’s opinions dealwith only two aspects of counsel’s plea-bargaining inadequacy, and leave other aspects (who knows what theymight be?) to be worked out in further constitutional litigation that will burden the criminal process. And it would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the pleabargaining process that the Court today announces “‘is the criminal justice system,’” Frye, ante, at 7 (quoting approvingly from Scott & Stuntz, Plea Bargaining as Contract,101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer atall, even though its case is weak—thereby excluding the defendant from “the criminal justice system”? . . .

And the remedy the Court announces—namely, whatever thestate trial court in its discretion prescribes, down to andincluding no remedy at all—is unheard-of and quite absurd for violation of a constitutional right. I respectfully dissent.

Perhaps what bothers me (and Justice Scalia) most is the remedy:

It is impossible to conclude discussion of today’s extraordinary opinion without commenting upon the remedyit provides for the unconstitutional conviction. It is a remedy unheard-of in American jurisprudence—and, Iwould be willing to bet, in the jurisprudence of any other country.The Court requires Michigan to “reoffer the plea agreement” that was rejected because of bad advice from counsel. Ante, at 16. That would indeed be a powerful remedy— but for the fact that Cooper’s acceptance of that re- offered agreement is not conclusive. Astoundingly, “the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentencerespondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.” Ibid. (emphasis added).Why, one might ask, require a “reoffer” of the plea agreement, and its acceptance by the defendant? If the district court finds (as a necessary element, supposedly, of Strickland prejudice) that Cooper would have accepted the original offer, and would thereby have avoided trial and conviction, why not skip the reoffer-and-reacceptanceminuet and simply leave it to the discretion of the state trial court what the remedy shall be? The answer, of course, is camouflage. Trial courts, after all, regularlyaccept or reject plea agreements, so there seems to be nothing extraordinary about their accepting or rejectingthe new one mandated by today’s decision. But the acceptance or rejection of a plea agreement that has nostatus whatever under the United States Constitution is worlds apart from what this is: “discretionary” specification of a remedy for an unconstitutional criminalconviction.

I suspect that the Court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, isattributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any “remedy” provided for this will donothing but undo the just results of a fair adversarial process.

Curiously, Scalia cites to international law to show that the American style of plea bargaining is not practiced anywhere else (this portion is not joined by the Chief or Alito):

In many—perhaps most—countries of the world, Americanstyle plea bargaining is forbidden in cases as seriousas this one, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial. See, e.g.,World Plea Bargaining 344, 363–366 (S. Thaman ed. 2010). In Europe, many countries adhere to what theyaptly call the “legality principle” by requiring prosecutorsto charge all prosecutable offenses, which is typically incompatible with the practice of charge-bargaining. See, e.g., id., at xxii; Langbein, Land Without Plea Bargaining:How the Germans Do It, 78 Mich. L. Rev. 204, 210–211 (1979) (describing the “Legalitätsprinzip,” or rule of compulsory prosecution, in Germany). Such a system reflectsan admirable belief that the law is the law, and those who break it should pay the penalty provided.

In the United States, we have plea bargaining a-plenty,but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging thateffectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actualcrime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposedon it, and our system of criminal justice would grind to a halt. See, e.g., Alschuler, Plea Bargaining and its History, 79 Colum. L. Rev. 1, 38 (1979).

Another thing that bothers me (and Scalia) is that Lafler was found guilty after a full trial! Though, I suppose the harm was done once the plea was botched:

Today, however, the Supreme Court of the UnitedStates elevates plea bargaining from a necessary evil toa constitutional entitlement. It is no longer a somewhatembarrassing adjunct to our criminal justice system;rather, as the Court announces in the companion case tothis one, “‘it is the criminal justice system.’” Frye, ante, at 7 (quoting approvingly from Scott 1912). Thus, even though there is no doubt that the respondent here is guiltyof the offense with which he was charged; even though hehas received the exorbitant gold standard of American justice—a full-dress criminal trial with its innumerable

constitutional and statutory limitations upon the evidencethat the prosecution can bring forward, and (in Michiganas in most States3) the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid because he was deprived of his constitutional entitlement to plea-bargain.
I am less saddened by the outcome of this case than Iam by what it says about this Court’s attitude toward criminal justice. The Court today embraces the sportingchance theory of criminal law, in which the State functionslike a conscientious casino-operator, giving each player afair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player isexcluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the Supreme Court.

Alito in Lafler wrote a brief dissenting opinion:

Time will tell how this works out. The Court, for its part, finds it unnecessary to define “the boundaries of proper discretion” in today’s opinion. Ante, at 13. In myview, requiring the prosecution to renew an old plea offer The lower court judges who must implement today’s holding may—and I hope, will—do so in a way that mitigates its potential to produce unjust results. But I would not depend on these judges to come to the rescue. The Court’s interpretation of the Sixth Amendment right tocounsel is unsound, and I therefore respectfully dissent.

Yeah, Nino’s dissent is not respectful.

Everyone joins Nino’s dissent in Frye in full.

The only issue was whether the in- adequacy deprived Frye of his constitutional right to a fair trial. In other cases, however, it will not be so clear that counsel’s plea-bargaining skills, which must now meet a constitutional minimum, are adequate. “[H]ow todefine the duty and responsibilities of defense counsel inthe plea bargain process,” the Court acknowledges, “is a difficult question,” since “[b]argaining is, by its nature,defined to a substantial degree by personal style.” Ante, at 8. Indeed. What if an attorney’s “personal style” is to establish a reputation as a hard bargainer by, for example,advising clients to proceed to trial rather than accept anything but the most favorable plea offers? It seems inconceivable that a lawyer could compromise his client’s constitutional rights so that he can secure better deals for other clients in the future; does a hard-bargaining “personal style” now violate the Sixth Amendment? The Court ignores such difficulties, however, since “[t]his case presents neither the necessity nor the occasion to define theduties of defense counsel in those respects.” Ante, at 8. Perhaps not. But it does present the necessity of confronting the serious difficulties that will be created by constitutionalization of the plea-bargaining process. It will not do simply to announce that they will be solved in the sweet by-and-by.