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June 17, 2013

"Lafler and Frye: Two Small Band-Aids for a Festering Wound"

The title of this post is the title this notable new paper by Albert Alschuler now available via SSRN. Here is the abstract:

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press.  Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely.  Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial?  The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].”  Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve.  Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires.  This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials.  It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population.  By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.

The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties.  If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman.  Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.

Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

June 17, 2013 at 11:37 PM | Permalink

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Comments

Prof. Alschuler stumbles coming out the gate because he slightly, but significantly, miscasts what Justice Kennedy said. Kennedy did not say that defendants are punished because they choose to go to trial; if that were the case, the crux of plea bargaining would be unconstitutional per se as a violation of the Sixth Amendment. And indeed, precisely that claim was made dozens of times in early litigation against the Acceptance of Responsibility provision. It failed every single time, and nothing in Lafler suggests the outcome would be different now.

What Kennedy actually said was that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

So what? Where's the Constitutional (or any other kind) of violation? What part of the Constitution says that Congress can decide on the length of sentences ONLY to achieve just punishment? Or only to achieve incapacitation? Or only to achieve general deterrence? Or only to achieve rehabilitation?

All those are accepted goals of punishment for the same reason: They are a response to crime that is constructive from society's point of view. But exactly that same thing can be said of reducing the crush and cost of criminal litigation by inducing settlement rather than trial.

If defendants really think that plea bargaining is a "festering wound," their remedy is at hand: Refuse. Tell the fascist prosecutor to kiss it. You'll see him and his thug agents at trial.

To which my response is: Feel free. The Constitution authorizes, indeed it embraces, exactly that response.

Then watch what happens when the jury sees the evidence.

Posted by: Bill Otis | Jun 18, 2013 11:16:51 AM

I don't actually see how the previous comment differs in analysis from the summary of Altschuler's analysis.

What happens if you tell the fascist to shove it and go to trial is that you are found guilty of the substantive crime that (at least in many cases) no one disputes you committed. Then you are subject to a sentence that is probably not proportionate to your conduct/the harm of the offense, because that sentence is not designed to correlate to what is necessary to deter/punish/incapacitate, but to what is necessary to induce pleas.

The disconnect between the sentences and the seriousness of the crime is the point of the article, and the comment doesn't appear to dispute that. It just doesn't seem to think it is a problem because it is not unconstitutional, or because it thinks once you've committed any crime, you deserve whatever you get. But not everything that is constitutional is good policy. And I don't think it is radical to argue that there should be gradation and proportionality in punishment. I am assuming the point of the article is that we are making a bad deal by engaging in widespread over-punishment just to save a few bucks on the front end in trial costs. I don't see the comment disputing the factual premise that a deal is made to increase punishment to save trial costs; it's just that the commenter seems to see it as a cause for celebration rather than concern.

Posted by: anon | Jun 18, 2013 1:56:54 PM

"What happens if you tell the fascist to shove it and go to trial is that you are found guilty of the substantive crime that (at least in many cases) no one disputes you committed."

If no one disputes you committed it, why are you going to trial at all? Because your lawyer wants to run the meter?

"Then you are subject to a sentence that is probably not proportionate to your conduct/the harm of the offense..."

According to what I see here day in and day out, few if ANY sentences are "proportionate" to the conduct because -- ready now? -- Mr. Nicey wasn't really, truly responsible, and, besides that, there wasn't any harm, especially if your crime involved drugs (which should be legal), or CP (only producers are actually culpable), swindles, immigration and a raft of other stuff that is always and ever characterized as "low level, non-violent" et al., even when its mind-boggling.

It's in defense lawyer DNA to bellow that sentences are disproportionate. When you conceptualize the client as a victim, the actual victim as a nonentity, and society as the Great Satan, that's what you're going to think. Tell me something new.

"...because that sentence is not designed to correlate to what is necessary to deter/punish/incapacitate, but to what is necessary to induce pleas."

See above. In addition, if the sentence is designed to induce pleas, it's 95% successful, both in saving the taxpayers litigation costs and getting the defendant to MUCH less than the maximum (either statutory or guidelines) would allow.

"The disconnect between the sentences and the seriousness of the crime is the point of the article, and the comment doesn't appear to dispute that."

That's because I start with the low-hanging fruit, to wit, Alschuler's clever misconstruction of what Justice Kennedy wrote (which your comment doesn't appear to dispute). As to the supposed disconnect between punishment and offense, that's just Alschuler's bias, which you (and most pro-defendant types, but not the public) share. Fine. You and he are entitled to it, but you're not entitled to tell us that Justice Kennedy said or implied that plea bargaining and/or its rewards unconstitutionally burden the defendant's right to a trial. He said no such thing and neither has any other federal court of review.

"I am assuming the point of the article is that we are making a bad deal by engaging in widespread over-punishment just to save a few bucks on the front end in trial costs."

By using the word "over-punishment," you just assume your conclusion. Nor a we "just saving a few bucks." We're saving a lot of bucks -- bucks which, in the context of prison costs, your side constantly wails that we JUST DON'T HAVE. You're also blatantly whistling past the most important benefit of imprisonment, to wit, its substantial contribution to the reduction in crime. There are those of us -- admittedly not in great numbers among the defense bar -- who think that having tens of thousands of fewer crime victims is actually a good thing.

Posted by: Bill Otis | Jun 18, 2013 3:28:40 PM

Although not many have yet focused on it, the Supreme Court recently granted Certiorari in another ineffective assistance of counsel during plea bargaining case. See, "Titlow v. Burt", 680 F.3d 577, 592-93 (6th Cir. 2012), cert. granted,"Burt v. Titlow", No.12-414 (U.S.2/25/13). The case has been placed on the Supreme Courts Fall 2013 calendar. The issue to be decided is whether a defendant claiming that he would have accepted a plea bargain offer if his attorney had advised him properly may gain relief just based upon his own word, or whether he must produce other and additional evidence to prevail. There is a Circuit split on that issue, which the Supreme Court wants to resolve.

Posted by: Jim Gormley | Jun 18, 2013 3:54:11 PM

loved this part bill!

"You and he are entitled to it, but you're not entitled to tell us that Justice Kennedy said or implied that plea bargaining and/or its rewards unconstitutionally burden the defendant's right to a trial. He said no such thing and neither has any other federal court of review."

You do realize that most of the little criminals who now run this govt could not tell the truth IF the TRUTH would SOUND BETTER!

they are physically incable of it!

Even if he had said it plain out. by the time it went past 20 clerks. 200 lawyers. and 1,000 proof readers. it would have been striken and rewritten !

Posted by: rodsmith | Jun 19, 2013 2:50:46 AM

If anyone wants to see a fascinating grant of habeas corpus, based upon ineffective assistance of counsel during plea bargaining (reversing the District Judge), please read "Richard Jones, Jr. v. United States", 2012 WL 5382950 (6th Cir. November 5, 2012). The defendant's sentence was cut to 210 months from 420 months!

Posted by: Jim Gormley | Jun 19, 2013 5:35:16 PM

I dare say few, if any, of us would ever have accused Bill Otis of bringin' the yucks, or even the grins, but I really am beginning to wonder about his stability of late. I used to think of Otis as a very smart, irascible guy holding legal, political, and moral views more or less diametrically opposed to my own, but still within the bounds of civilized (by which I mean humane, and not just polite, or pinky-tipping, in some formalistic way) opinion and discourse.

But I don't think I've read an Otis comment in the last six or more months that hasn't aped the "kill" shot from an episode of "Mutual of Omaha's Wild Kingdom with Marlin Perkins." Every last one is the verbal equivalent of the opening scene of "2001"; heavily-muscled hirsute men ripping apart raw flesh to the accompaniment of tympany.

Mr. Otis - are you okay? We care.

Posted by: RWS | Jun 19, 2013 11:04:21 PM

RWS --

Thanks for caring. If you have any legal analysis to offer, feel free.

Posted by: Bill Otis | Jun 20, 2013 2:52:11 PM

Now there's the Otis I used to know and...like. Welcome back, camper!

Posted by: RWS | Jun 20, 2013 5:10:27 PM

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