Brown: Supreme Court Recognizes Key Role of Plea Bargaining in Criminal Justice System


Professor Darryl Brown, an expert in criminal law and criminal procedure, said the Supreme Court's new rulings on plea bargaining reflect the reality that "defendants get very different convictions and sentences depending on whether they plead guilty or go to trial."

March 26, 2012

Two close decisions in the U.S. Supreme Court last week could shake up how plea bargains work and secure more rights for defendants, said University of Virginia law professor Darryl Brown.

The court said in 5-to-4 rulings Lafler v. Cooperand Missouri v. Fryethat criminal defendants have a constitutional right to effective lawyers during the plea-bargaining process. Justice Anthony M. Kennedy wrote for the majority that that the Sixth Amendment right to counsel extends to plea negotiations because plea bargaining has become so pervasive in the modern criminal justice system.

Brown, an expert in criminal law and criminal procedure, explains the two decisions and how they may change how plea bargaining works:

"The Supreme Court held in Cooper, in effect, that when a lawyer's bad advice leads a defendant to turn down a prosecutor's plea bargain offer that he would have taken if his lawyer had given him competent advice, then the defendant is entitled to that plea bargain And in Frye, it said the same thing is true if a defendant's lawyer fails to tell him about a prosecutor's plea bargain offer at all, so that he never has a chance to accept it.

What's significant about Frye and Cooper is that the court recognized for the first time that defendants have a legitimate interest in plea bargain offers that they would have accepted — and that courts would have approved. Previously, all the rules have been concerned with questions such as whether the defendant entered his guilty plea voluntarily, or whether the parties both lived up to the promises each made in the plea agreement.

In recognizing defendants' interest in plea bargain offers, the court is in a sense acknowledging reality for the first time: The reality is that defendants get very different convictions and sentences depending on whether they plead guilty or go to trial, independent of the facts of the case or their moral guilt or anything else.

The dissenters in these cases, and the prosecutors who argued the other side, said that defendants who are convicted in a fair trial have nothing to complain about: They were guilty of the crime, the trial was fair, the long sentence they got was completely lawful. But the fact is that a plea bargain is always going to result in a lesser sentence than a sentence following a "guilty" verdict at trial. There are in a sense two prices for every crime — the plea price and the trial price. Plea bargains are not just an alternative process to trials for reaching the same correct outcome — convicting the guilty. They are alternative practices that always produce alternate outcomes.

Cooper and Frye state very clearly that defendants do not have a constitutional right to a plea bargain — prosecutors do not have to make plea offers if they don't want to.

Cooper and Frye say simply that, when a prosecutor makes a plea offer, the Constitution protects defendants from losing the chance to accept that offer because his lawyer failed to tell him about it, and gave him incompetent advice that misled him to turn it down on the false hope of winning at trial. Still, the decisions could be significant. About 95 percent of all criminal convictions are the result of guilty pleas rather than trials, so prosecutors offer bargains in nearly every case. So, as the majority in Cooper says, plea bargains are not an exception to the criminal justice system; they are the system. Cooper and Frye take another step in defining the minimal things that defense lawyers have to do for the modern-day criminal process to be fair. Criminal process these days is all about pleas. After Cooper and Frye, bad lawyers shouldn't be the cause of defendants who fail to plead guilty on terms that are determined by prosecutors and judges but still very much in their self-interest."

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