Darryl Brown

Lafler, Frye and Our Still Unregulated Plea Bargaining System

Federal Sentencing Reporter

UVA Law Faculty Affiliations


In its 2010 decision in Padilla v. Kentucky,  which recognized defense representation may be constitutionally inadequate if attorneys do not offer their clients some guidance on the immigration consequences of entering a guilty plea, the U.S. Supreme Court offered some forthright and overdue acknowledgement that contemporary American criminal adjudication is in fact a system of guilty pleas rather than trials. The Court’s decisions this term in Missouri v. Frye and Lafler v. Cooper reiterate the justices’ recognition of that reality, and they go beyond Padilla in an important respect to define contexts in which defense representation in the plea bargaining process may be constitutionally inadequate. Yet, whereas the Court’s opinions suggest a need for greater regulation of the predominant mode of criminal adjudication, its decisions develop regulation of only a particularly limited sort, likely to affect directly only a small portion of cases. For meaningful governance of the plea adjudication system, the Court will have to shift its attention beyond the Sixth Amendment Counsel Clause on which the holdings of Padilla, Lafler, and Frye rest. In this comment, I want to highlight what I understand as the significance of Lafler and Frye, and then make two points about the limits of Lafler-Frye doctrine. The first concerns Lafler-Frye remedies, especially with regard to sentencing. The second addresses a broader point about the prospects for constitutional regulation of plea bargaining more generally.


Darryl K. Brown, Lafler, Frye and Our Still Unregulated Plea Bargaining System, 25 Federal Sentencing Reporter 131-134 (2012).

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