ESSAY CONTENTS INTRODUCTION I. REGULATING THE PLEA PROCESS IN PADILLA, FRYE, AND LAFLER A. The Cases of Jose Padilla, Galin Frye, and Anthony Cooper B. Jurisprudential Support for a Right to Effective Bargaining Counsel C. Prevailing Professional and Ethical Norms on Plea Bargaining II. OBSTACLES AND PRACTICAL CONSIDERATIONS IN DEFINING EFFECTIVE PLEA BARGAINING COUNSEL A. Plea Bargaining as an Art Conducted Behind Closed Doors B. The "Floodgates" Objection to Ineffective Assistance Norms CONCLUSION INTRODUCTION
Charged with a felony in Florida state court, Clarence Earl Gideon needed a lawyer but could not afford one. Although the trial judge sympathized, he believed state law barred him from granting Gideon's request for appointed counsel. (1) At his original trial in 1961, (2) "Gideon conducted his defense about as well as could be expected from a layman," yet the jury convicted and the judge sentenced him to five years in prison. (3) Pursuing his claim of a Sixth Amendment right to appointed counsel up to the Supreme Court, Gideon triumphed: on remand, he got his trial with a defense lawyer who played a critical role. (4) This time, the jury acquitted after deliberating for a little more than an hour. (5)
More than forty years later in different state courts, Galin Frye and Anthony Cooper did not want trials, but like Gideon, they needed effective representation. They wanted to plead guilty and to cut their losses by getting the most favorable sentences possible. Both men had lawyers who failed to serve them in this regard. Frye's attorney neglected to tell him about a favorable misdemeanor plea offer in his felony case, and Cooper's attorney talked him out of accepting a favorable plea offer by giving him bad advice about his chances at trial. (6)
Gideon needed representation at trial. The Gideon decision recognized how "[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law," and thus "requires the guiding hand of counsel at every step in the proceedings against him." (7) Frye and Cooper needed lawyers focused on a different task: counsel who functioned effectively in a plea bargaining system. In three recent decisions, the Court signaled a new era in the constitutional regulation of plea bargaining. (8) Padilla v. Kentucky established that defendants in criminal cases have a constitutional right to counsel's advice about the deportation consequences of a conviction. (9) In Missouri v. Frye, the Court held that Frye's attorney acted incompetently when he failed to communicate to Frye a plea offer from the prosecution. (10) Lafler v. Cooper held that defendants who reject a lenient plea offer and go to trial due to counsel's bad advice, with the result of a harsher sentence, have a potential remedy. (11)
The case holdings thus all relate to an individual's right to information and counseling about a plea offer or guilty plea. They do not examine--and so do not directly establish--a defendant's right to a lawyer who meets minimal constitutional standards for "effective" plea bargaining between the defense attorney and the prosecutor. They regulate only the conversation between defense counsel and the client. For example, Padilla established the right to advice about the deportation consequences of a conviction, but did not establish the right to a lawyer who does an effective job avoiding deportation when feasible.
Yet it is difficult to conceive of a meaningful right to counsel if counsel is not required to function effectively in a plea bargaining system. This is precisely Jose Padilla's current situation, having won his ineffective assistance claim. (12) Back in the trial court on the original charges, Padilla's options are clear: he can go to trial or he can negotiate a plea bargain that avoids deportation. (13) For example, a carefully structured plea to felony solicitation under Kentucky state law (14) might allow Padilla to avoid deportation in his California immigration case. (15) Although the Supreme Court did not consider whether trial counsel should have explored such a plea initially, the issue is now squarely presented for Padilla's lawyer. It is hard to imagine any strategic reason that counsel would now fail to seek a plea that might avoid deportation (unless perhaps Padilla instructed counsel that he only wanted a trial). Indeed, the Kentucky Court of Appeals on remand recognized that, "had the immigration consequences of Padilla's plea been factored into the plea bargaining process, trial counsel may have obtained a plea agreement that would not have the consequence of mandatory deportation." (16) Defense counsel's duty to effectively bargain is thus clearly illustrated in instances where defense counsel failed to attempt to bargain around severe collateral consequences that the defendant wished to avoid. Such bargaining is central to counsel's core function, because even the most minor conviction can lead to severe collateral consequences affecting basic facets of daily life such as housing, public benefits, and employment; criminal records are also widely available through a variety of easily accessible databases, so that every contact with the criminal justice system affects individuals' lives in ways unimaginable only a decade ago. (17)
Imagine a jurisdiction where prosecutors regularly negotiate to reduce felony drug possession charges to misdemeanors with nonjail treatment alternatives or probation for first-time offenders. Imagine defense counsel with limited experience in this jurisdiction with a client whose primary concern is avoiding incarceration. Based on this concern, on an official sentencing range for the felony charge extending from probation to years of imprisonment, and on a lack of strong suppression arguments or trial defenses, counsel tells the prosecution the defendant will plead guilty to the felony in exchange for a sentence of probation. The prosecutor agrees, having been ready to accept a misdemeanor plea if asked and having had no intention of seeking jail or prison time in any event. The defendant pleads guilty to the drug felony and is sentenced to probation. Despite the oversimplified facts, one may question whether counsel functioned effectively in the plea bargain system or instead whether counsel saddled the defendant with an unnecessary felony conviction, with all the direct and collateral consequences that follow such a conviction, by failing to take the simple and well-established step of asking for a misdemeanor offer.
The Court's recent plea bargaining jurisprudence "made clear that 'negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.'" (18) The cases are also testament to the Court's recognition that "plea bargaining is ... not some adjunct to the criminal justice system; it is the criminal justice system," (19) and to the reality that ninety-five percent of all convictions follow guilty pleas and not trials. (20) 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, even broadly? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention. After exploring the jurisprudential support for a right to effective bargaining counsel in the Court's recent plea bargaining decisions, Part I describes several professional standards relating to plea negotiations in order to demonstrate that this area of criminal defense practice has detailed standards that can inform the developing constitutional norms. Part II considers two main obstacles to an attempt to regulate ineffective bargaining counsel as a constitutional matter, namely the arguments that negotiation is an art conducted behind closed doors that is nuanced and difficult to capture in standards and that attempting to regulate bargaining will open floodgates to future litigation. This Part concludes that while constitutional analysis and regulation of the content of plea bargaining poses challenges, these challenges do not outweigh the need to give meaning to the constitutional right to effective bargaining counsel.
REGULATING THE PLEA PROCESS IN PADILLA, FRYE, AND LAFLER
In Padilla, Frye, and Lafler, the Supreme Court established a significant body of plea bargaining and guilty-plea jurisprudence grounded in the Sixth Amendment right to the effective assistance of counsel. This Part tells the stories of deficient plea processes in those cases, and then discusses the jurisprudential support they provide for a constitutional right to effective bargaining.
The Cases of Jose Padilla, Galin Frye, and Anthony Cooper
Jose Padilla, a lawful permanent resident of the United States, was arrested with a large amount of marijuana in his commercial truck. (21) Although he had children who were U.S. citizens, (22) had served in the Army during Vietnam, (23) and had made only one two-week journey back to his birth country of Honduras during the forty years preceding his arrest, (24) Padilla faced automatic deportation for a felony marijuana trafficking conviction because he was a noncitizen. (25) Unfortunately Padilla did not know this, and pled guilty after his trial attorney gave him the patently incorrect advice that he "did not have to worry about immigration status since he had been in the country so long." (26)
In 2010, the Supreme Court in Padilla v. Kentucky held that criminal defense attorneys have an affirmative constitutional duty to properly advise clients about the near-automatic deportation consequences of a guilty plea. (27) Padilla thus met the first part of the two-pronged test for a Sixth Amendment claim of ineffective assistance of counsel: a demonstration that counsel's acts or...