« You be the sentencing judge: what is a fair and effective sentence of 86-year-old mercy killer? | Main | Two notable resentencing stories via the New York Times »

March 29, 2013

"Toward a Common Law of Plea Bargaining"

The title of this post is the title of this notable new article by Wesley Oliver available via SSRN. Here is the abstract:

This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness. In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion.

Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining.

Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.

March 29, 2013 at 09:52 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017ee9d4984f970d

Listed below are links to weblogs that reference "Toward a Common Law of Plea Bargaining":

Comments

"The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness."

The opinions encourage no such thing, nor is there any reason that they should. Whether defense counsel is ineffective for losing or fumbling away a plea offer by the prosecution has nothing to do with the prosecutor's MOTIVES. It has to do principally with what the defense lawyer did or failed to do, and secondarily with what the actual offer was.

The abstract gives no reason that the "motives" behind the offer matter or ought to matter. Since the prosecutor cannot be compelled ab initio by the court to make a particular offer, or to offer to bargain at all, the prosecutor's thought processes are irrelevant.

I mean, hello, I understand that some folks desire to make EVERYTHING the prosecutor's doing, but trying to graft that desire onto an analysis of DEFENSE COUNSEL'S blunders is a bridge too far.

Posted by: Bill Otis | Mar 29, 2013 10:11:22 AM

And even then the sorts of fumbles at issue in these cases are so egregious as to fail the Strickland test when applied in the context of plea negotiation. Certain courts have been more that willing to try and sneak things through under that analysis but as far as I know very few of those attempts have actually been successful on appeal.

Frey certainly wouldn't require any actual negotiating skill, just acting as an honest messenger between the prosecutor and defendant. While Lafler v. Cooper, simply requires that the defense attorney be knowledgeable of the law.

What I am interested in though, will courts start making some sort of pretrial inquiry of the defendant as to their understanding of any rejected offer in order to shield against post-trial collusion claiming that these very low standards were not met?

Posted by: Soronel Haetir | Mar 29, 2013 11:58:49 AM

I have to agree with Bill here. While the author is correct that Laffler and Frye are landmark decisions with far-reaching implications, I don't believe they augur a change to the judicial canons such that it will suddenly be deemed proper for judges to interfere with plea negotiations or pass judgment on what is or is not proper (motivationally or otherwise) on the part of prosecutors. Further, the idea that defense lawyers have been doping along with nary a thought of developing negotiating skills until, lo! Laffler and Frye set us all on the straight path is laughable. Forgodsakes, Laffler and Frye weren't even about negotiation. They were about complete dereliction of legal duty. And anyway, if we poor defense lawyer sots were all so oblivious to the power of negotiation, why would fewer than 5% of all federal cases result in trials? I take umbrage at the author's suggestion that these two decisions are all that stand in the breach to protect my clients from being represented by the legal equivalent of Howdy Doody during plea negotiations.

I am certainly sympathetic with some of the author's concerns about the boundaries of prosecutorial power, but I don't think that Laffler and Frye offer the remedies he suggests. The law of civil remedies, which he attempts to cobble onto the law of effective assistance of counsel just doesn't fit. Plea negotiations are not contract negotiations and trying to apply the "benefit of the bargain" analysis to a context in which the balance of power, benefits, and obligations is, necessarily, unequal is not at all illuminating.

Posted by: AFPD | Mar 29, 2013 3:57:57 PM

Many plea bargains are taken "voluntarily" because if the defendant doesn't take it, then the prosecutor will threaten to throw on more charges to increase the penalty if taken to trial. I thought coercion was illegal. And the overcharging of defendants so they have no choice but to take a plea to have some of them dropped is just as bad!

Posted by: Jill | Mar 30, 2013 9:18:15 AM

Jill --

"Many plea bargains are taken "voluntarily" because if the defendant doesn't take it, then the prosecutor will threaten to throw on more charges to increase the penalty if taken to trial."

No one ever went to jail simply by going to trial. The jury has to convict, BRD. And if it does so, jail is where the defendant belonged in the first place. See also Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Posted by: Bill Otis | Mar 31, 2013 4:46:45 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB