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April 20, 2013

"Effective Plea Bargaining Counsel"

The title of this post is the title of this new piece by Jenny Roberts now available via SSRN. Here is the abstract:

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney.  The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial.  Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel.  However, their attorneys failed to represent them effectively, and the Supreme Court -- recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials -- ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel?  If so, is it possible to define the contours of such a right?  The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.

In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel.  Any right to effective bargaining should be judged -- as other ineffective assistance claims are judged -- by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.

The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation.  While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel.  After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?

April 20, 2013 at 10:19 PM | Permalink


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I put off responding to this post until I cooled off.

Here's the problem with the state of plea bargaining and the reason why effective bargaining cannot exist in a system where one side holds all the cards and does not act in good faith. In the federal system, too often it's a take-it-or-leave-it situation. There is no winning for a defendant in federal cases where a mandatory minimum, particularly life, is at stake. The prosecutor has an insurmountable upper hand. No amount of expertise at bargaining can get around that.

Assume for example a defendant with two priors that are stale for guidelines purposes but would trigger a mandatory life if he went to trial and lost. (Because the priors are stale the defendant may qualify for the Safety Valve but that's a big if where mandatory life is at stake). The federal prosecutor makes an offer to a quantity that I believe overstates the defendant's involvement in the case so I ask how the prosecutor arrived at the quantity. Significantly, the quantity in the offer would not trigger mandatory life even with two priors so why did the prosecutor charge the defendant with the most aggravated offense of which he is not guilty.

The prosecutor's response is:

"The quantity does not necessarily represent the amount of drugs [the defendant] personally received; it represents an (sic) of drugs that [the defendant] reasonable (sic) could forsee (sic) all of his co-conspirators conspired to possess and distribute. Given that [the defendant] faces a possible sentence of life without parole if convicted of the offense charged in the indictment, we think the plea offer we have extended is an eminently fair and reasonable one."

My response is to cite binding circuit case law and application note 2 to 1B1.3 (relevant conduct) which provides that defendant can only be held liable for quantities that are reasonably foreseeable AND within the scope of the agreement.

Prosecutor's response: "We understand from your response that [the defendant] is rejecting the government’s plea offer. We are prepared to set a motions schedule and a trial date in his case at the next status hearing."

So there it is. The law be damned. Might makes right. What is the "effective bargainer" response to this?

Posted by: Carmen Hernandez | May 3, 2013 5:41:46 PM

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