Josh Bowers

Lafler, Frye, and the Subtle Art of Winning by Losing

PUBLISHER
Federal Sentencing Reporter
DATE
2012
 

Abstract

In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.

Citation

Josh Bowers, Lafler, Frye, and the Subtle Art of Winning by Losing, 25 Federal Sentencing Reporter 126-130 (2012).
 

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