Creating constitutional procedure: Frye, Lafler, and plea bargaining reform.

• Author: Work, Mike
• Position: Case note

Table of Contents INTRODUCTION I. BACKGROUND A. The Right to Counsel at Critical Stages of Criminal Proceedings B. Plea Bargaining as a Critical Stage in Criminal Litigation C. Ineffectiveness of Counsel Claims Related to Plea Bargaining D. Remedying Ineffective Counsel in Plea Bargaining Cases E. Lafler v. Cooper F. Missouri v. Frye II. DISCUSSION A. Caseloads as a Systemic Impediment to Effective Counsel B. Prosecutorial Discretion and the Forces that Subvert It C. Overcharging and Coercive Plea Bargaining D. Defense Responses to the Evolving Plea Market E. Potential Plea-Bargaining Reforms III. THE AFTERMATH OF FRYE AND LAFLER CONCLUSION INTRODUCTION

Plea bargaining, an element of the criminal justice system since the 1800s, has become increasingly central to criminal proceedings over the past forty years. In Argersinger v. Hamlin, the Supreme Court recognized the problems associated with the mass volume of cases in the legal system. (1) The Court noted the resulting effects on overworked attorneys and judges, as well as the pressure those case volumes put on attorneys to clear cases from a docket without giving adequate attention to the defendant standing before the court. (2) These challenges have only increased in the years since, and the practice of plea bargaining has become increasingly prevalent as an effort to administer justice more fairly and efficiently. (3) Nearly 95% of all criminal cases in state court systems are resolved without going to trial, and the percentage of pleas defendants enter in federal court is even higher. (4) In the majority opinion of Missouri v. Frye, Justice Anthony Kennedy approvingly quoted two scholars who remarked that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (5) Many commentators have criticized plea bargaining, with some calling for its abolition. (6) Irrespective of their concerns, plea bargaining has become entrenched in the criminal justice system, which depends on plea bargaining at both the state and federal levels. (7) Plea bargaining's place in the criminal justice system can be explained by its effectiveness in efficiently resolving cases: it allows for cases to be resolved promptly, which is all the more important when both prosecutors and defense attorneys are assigned a significantly greater volume of cases than any one attorney can competently manage. The Supreme Court has recognized plea bargaining's importance, enshrining its place in the system by denoting it as a stage where a violation of the defendant's Sixth Amendment right to effective counsel can result in habeas relief on the grounds of ineffective counsel. (8)

The Supreme Court's recent holdings in Missouri v. Frye and Lafler v. Cooper clarify the specific nature of the relief available when a defense attorney fails to communicate a plea bargain or gives defective legal advice, encouraging a trial that results in a conviction and a significantly more severe sentence than offered in a plea. (9) In Frye and Lafler, the Supreme Court reinstated plea offers after the defendants successfully claimed ineffective assistance of counsel. The dissents in both cases predict that the Court's chosen remedy could result in further constitutional litigation with respect to plea bargaining, and that rather than solving a problem, the Court created a new field of litigation. (10)

This Comment explores the ripple effects that Frye and Lafler will have on both prosecutors and defense attorneys, and the possibility that reinstating plea offers will result in increased constitutional litigation. This Comment argues that the holdings in Frye and Lafler supply a means for encouraging prosecution-focused reform efforts and for curtailing practices of overcharging defendants and using so-called exploding offers. Legislative remedies should address the underfunding of both public defender organizations and prosecutors. (11) Future litigation should focus on guaranteeing that plea offers remain available after first appearances. Together, these efforts will ensure that defendants are able to exercise their right to effective assistance of counsel.

Part I provides background information on the extension of the right to counsel from the trial to other critical stages of criminal proceedings. Specifically, it focuses on cases involving plea bargaining, as well as seminal cases addressing ineffective assistance of counsel. After introducing these concepts, the Comment looks more carefully at Missouri v. Frye and Lafler v. Cooper, in which the Supreme Court clarified the remedy available to defendants granted habeas relief because of counsel ineffectiveness during plea bargaining.

Part II focuses on several of the root causes of ineffective counsel, namely overcriminalization, excessive caseloads, and the institutional cultures of prosecutorial teams and public defender offices. These issues help explain the practices of overcharging defendants and extending exploding offers, and the effects they have on agents within the emerging plea bargaining market.

Part III charts several possible paths that litigation challenging these practices could take, with an eye towards eventual reforms. (12) Further, it suggests the potential implications Frye and Lafler could have upon the plea bargaining process. It looks first at how Frye and Lafler could directly affect defense attorneys and prosecutors, and then it forecasts possible litigation that could bring about specific reforms within the plea bargaining process, such as some of the challenges mentioned in Part II.

1. BACKGROUND

   1. THE RIGHT TO COUNSEL AT CRITICAL STAGES OF CRIMINAL PROCEEDINGS

      The Sixth Amendment guarantees assistance of counsel for those accused of criminal offenses. (13) Since the Amendment's passage in the eighteenth century, the doctrine of assistance of counsel has evolved to accommodate developments within the criminal justice system (14) and the establishment of new forms of police procedure. As part of the development of this area of law, the Supreme Court in Powell v. Alabama recognized that the rights of those accused of criminal offenses do not attach only at trial and that deprivation of the right to counsel constitutes a due process violation under the Fourteenth Amendment. (15) Indeed, there are earlier, critical stages of criminal proceedings during which the absence of counsel could cause substantial prejudice to the accused, who thus has a constitutional right to counsel at these stages. (16)

      In Massiah v. United States, the Court held that when an indicted defendant had retained counsel, government agents could not elicit statements outside of counsel's presence. (17) The Court reversed Massiah's conviction on the grounds that the government improperly arranged a meeting between the indicted defendant and a cooperative codefendant during which the defendant made incriminating statements outside the presence of counsel. (18) Citing Powell v. Alabama, the Court noted that the interval between arraignment and trial was "perhaps the most critical period of the proceedings" and that the defendant had the right to assistance of counsel in investigating the charged offense and preparing for trial. (19) When the government covertly elicited incriminating statements from an indicted defendant who had obtained counsel, it violated this right. (20)

      In United States v. Wade, the Court recognized the post-indictment lineup as another such "critical" stage at which the accused required counsel on account of the potential for police suggestivity. (21) Such suggestivity, the Court opined, could substantially damage the accused's chance of a fair trial, as an untrained citizen would be unable to detect suggestivity without the assistance of counsel. (22)

      In addition to guaranteeing defendants the right to counsel at certain stages of criminal proceedings, the Court made clear in Gideon v. Wainwright that the right to counsel applies in all criminal proceedings; the Court held that the right to counsel, "fundamental and essential to a fair trial," applied in all courts, federal and state. (23) The Court extended Gideon in Argersinger v. Hamlin, emphasizing the necessity of counsel in all cases where a guilty plea could result in imprisonment, including misdemeanor cases with sentences under six months. (24)

   2. PLEA BARGAINING AS A CRITICAL STAGE IN CRIMINAL LITIGATION

      Plea bargaining involves a trade-off between defendants and prosecutors, in which defendants agree to forego their constitutional right to a jury trial and enter a guilty plea in exchange for more lenient sentencing recommendations than would have been entered at trial. (25) Research indicates that these sentencing differentials play a significant role in motivating the accused to plead guilty, particularly when they face the prospect of mandatory minimum sentences after trial. (26) In turn, prosecutors obtain convictions, are able to promptly impose punishment, and spare the state the expenditure of resources involved in taking cases to trial. (27) Prosecutors have discretion to bring whatever charges they can support with probable cause, irrespective of whether these charges can all be proven at trial beyond a reasonable doubt. (28) When a case is overcharged, the accused faces duplicate charges for single acts or crimes charged at higher degrees than the evidence can reasonably support. (29) Without ready access to police reports, witnesses, and other evidence in the possession of the government, the accused first learns of the charges, which carry significant potential penalties, and any evidence the government chooses to disclose. Even though Brady v. Maryland requires the prosecution to disclose any favorable material information to the defendant, (30) the Supreme Court has not secured the defendant's right to Brady material during plea bargaining. (31) Given many defendants' inexperience in evaluating plea offers and...