April 17, 2012
In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony. Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial. The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result. In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test. Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.
However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty. By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea. Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'" Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver).
In Frye, after the defendant had been charged with the felony of driving with a revoked license, the prosecutor sent a letter to the defendant's attorney, offering for a limited time a choice of two plea bargains, one providing for a three-year sentence in exchange for a guilty plea, with 10 days to be served in jail, and the other providing for a reduction in the charge to a misdemeanor with a corresponding 90-day jail sentence, in exchange for a guilty plea. Defense counsel never informed the defendant about the offers. Subsequently, following his second arrest for driving with a revoked license, the defendant entered a guilty plea to the first charge, without any plea agreement, and was ultimately sentenced to three years in prison. Upon learning of the previous plea negotiation letter, the defendant filed a motion for postconviction relief, arguing that his attorney's failure to have informed him of the offers was ineffective assistance of counsel. The trial court denied the motion, but the Missouri Court of Appeals reversed, finding that the defendant had established both prongs of the Strickland test.
In affirming the essential holding of the lower court, the Supreme Court, in a majority opinion written by Justice Kennedy, determined that it was well established that a defendant has the right to counsel at all critical stages of the criminal proceedings, and noted that plea negotiations had not previously been recognized as such a critical stage. Pointing to statistics that revealed that 97% of federal convictions and 94% of state convictions are the result of guilty pleas, the Court concluded that "[t]he reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." Frye, 2012 WL 932020, at *6. The Court further pointed out that since the criminal justice system "'is for the most part a system of pleas, not a system of trials,' . . . it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Id. (quoting Lafler, 2012 WL 932019, at *9).
With regard to the "difficult question" of how to define the duties and responsibilities of defense counsel in the plea-bargaining process, the Court held that defense counsel must at a minimum inform the defendant of all formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Id. at *8. The Court noted that the American Bar Association's Standards for Criminal Justice, Pleas of Guilty 14-3.2(a) (3d ed. 1999), imposes an obligation to communicate all formal plea bargain offers to defendants and that several States have created guidelines to follow in plea negotiations; from these, the Court adopted several specific recommendations for parties to follow in the course of plea negotiations:
The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.
Frye, 2012 WL 932020, at *8 (citation omitted).
The Court next addressed the question of how to establish prejudice under Strickland in the plea-bargaining context, finding that in order to show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, criminal defendants
must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Id. at *9. The Court emphasized that applying Strickland to an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill but requires the defendant to make the different showing that he or she would have accepted the offer to plead pursuant to the terms earlier proposed and that there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.
Applying these new standards to the case before it, the Court held that because the Missouri Court of Appeals had not required the defendant to show that if he had accepted the first plea offer, it would have been adhered to by the prosecution and accepted by the trial court, the matter had to be remanded back to the court of appeals for that determination.
The issue presented in Lafler was both different and more complicated than that in Frye, as the alleged ineffectiveness of counsel in Lafler occurred when the defendant's attorney informed him of a plea offer but urged him to reject it. The defendant had been charged after a shooting incident with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions prior to trial, the prosecution had offered in exchange for a guilty plea to dismiss two of the charges against the defendant and to recommend a sentence of 51 to 85 months for the other two. The defendant had initially admitted his guilt and expressed a willingness to accept the offer, but he ultimately decided to go to trial because his attorney had convinced him that since he had shot the victim below the waist, the prosecution would be unable to establish his intent to murder. After trial, the defendant was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months' imprisonment.
Alleging ineffectiveness of counsel, the defendant brought a postconviction relief action in state court without success and then filed a petition for federal habeas relief under 28 U.S.C. ' 2254. The district court granted the defendant relief, holding that his attorney had been ineffective and ordering specific performance of the plea agreement originally offered by the Government. The Court of Appeals for the Sixth Circuit affirmed.
As in Frye, the Supreme Court in Lafler rejected the Government's position that a fair trial wipes clean any deficient performance by defense counsel during plea bargaining. The Court then addressed the specific contentions of the defendant and found that it was clear that the defendant's attorney had performed deficiently by misinforming the defendant about a legal principle applicable to his case and that the defendant had been prejudiced by the fact that he had received a sentence at trial that was more than three times as severe as the sentence offered during plea negotiations. Next focusing on the relief to be granted to a defendant who declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence as a result of trial, the Court found that the situation could present several alternatives: First, when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial, a court
may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
Lafler, 2012 WL 932019, at *10. The Court further recognized that in some situations, resentencing may not provide full redress for the constitutional injury:
If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
Id. (citation omitted).
In implementing a remedy in any case, the Court suggested weighing a variety of factors and specifically mentioned two: (1) the defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions, and (2) whether there was information concerning the crime that was discovered after the plea offer had been made.
The Court then applied the preceding principles to the defendant's case before it and determined that because the state courts had failed to apply Strickland properly, it could both grant relief under 28 U.S.C. § 2254 and provide an appropriate remedy. The Court decided that it was inappropriate for the district court to have ordered specific performance of the plea agreement and instead held that
[t]he correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.
Id. at *12.
In dissenting opinions in both cases, Justice Scalia, joined by other members of the conservative wing of the Court, called the decisions "absurd" and contended that they provided "a remedy unheard of in American jurisprudence." Id. at *13, *18 (Scalia, J., dissenting). Justice Scalia asserted that
the court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted and properly sentenced, and any "remedy" provided for this will do nothing but undo the just results of a fair adversarial process.
Id. at *18.
Justice Scalia's parting shot at the decisions, made from the bench at the time of their announcement, summarized the net effect of the cases, as he said with regard to the consequences of the decisions: "'[T]he court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.'" Liptak, supra (quoting Scalia, J.). On this point, observers of the Court are in full agreement, as the full import of Frye and Lafler will undoubtedly be the subject of countless court cases.