Effective Assistance of Counsel and Plea Bargaining

In a pair of cases decided on March 21, 2012, the United States Supreme Court addressed the Sixth Amendment right to the effective assistance of counsel as it applies to plea negotiations. In addition to describing the proof necessary to establish a claim of ineffective assistance of counsel relating to plea proceedings, the Court made some notable (although not surprising) observations about the importance of plea bargaining in the criminal justice system.

First, in Missouri v. Frye, the Court explained that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Thus, “[i]n today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Because guilty pleas are “so central to today’s criminal justice system . . ., defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

The Court then went on to hold that “[a]s a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.” If an attorney fails to do so and the plea offer expires or is rejected, a defendant can show prejudice (and establish a Sixth Amendment claim) by demonstrating “a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it.”

Next, in Lafler v. Cooper, the Court addressed the burden for a defendant who is convicted after trial but had rejected a plea offer based on objectively bad advice from counsel. To establish a Sixth Amendment violation, the defendant must prove a reasonable probability that the plea would have been accepted and the sentence would have been less severe than that which was actually imposed.