For the Sake of Public Policy: Plea Bargaining Demands Sixth Amendment Protection Due to Its Prevalence and Necessity in the Judicial System

• Publication year: 2022

48 Creighton L. Rev. 629. FOR THE SAKE OF PUBLIC POLICY: PLEA BARGAINING DEMANDS SIXTH AMENDMENT PROTECTION DUE TO ITS PREVALENCE AND NECESSITY IN THE JUDICIAL SYSTEM

FOR THE SAKE OF PUBLIC POLICY: PLEA BARGAINING DEMANDS SIXTH AMENDMENT PROTECTION DUE TO ITS PREVALENCE AND NECESSITY IN THE JUDICIAL SYSTEM

Jaqueline L. Schreurs - '16

I. INTRODUCTION

Ninety-seven percent of federal cases are settled by the plea bargaining process.(fn1) Ninety-four percent of state cases are settled by the plea bargaining process.(fn2) While the importance of plea bargaining and its role in the judicial system has long been recognized by the United States Supreme Court, the law governing plea bargaining, specifically the prosecutor's and defense counsel's behavior, has failed to fully develop over the past four decades.(fn3) In 2012, the Court took a step forward in developing law that affected the plea bargaining process.(fn4) Due to the powerful leverage prosecutors have in the plea bargaining process, this Article suggests the Court appropriately allowed for claims of ineffective assistance of counsel based on the rejection of a favorable plea offer.(fn5)

This Article will discuss the current role of plea bargaining in the American judicial system as well as how the tests for effective counsel and valid guilty pleas came to govern the claims of interest.(fn6) The Background will examine the Court's opinions in Strickland v. Washington,(fn7) Boykin v. Alabama,(fn8) and Hill v. Lockhart,(fn9) which all helped to develop the analysis applied to claims of ineffective assistance of counsel in the plea bargaining stage today.(fn10) Following the Background, the Argument will discuss the public policy reasons that support the plea bargaining system and why the system ought to remain a part of the American judicial system.(fn11) Next, the Argument will address the unfair advantage prosecutors have in the plea bargaining system.(fn12) In considering the unfair advantage, the Court appropriately clarified that a claim for ineffective assistance of counsel could be made if a defendant rejected a favorable plea offer.(fn13) The Argument will then consider two concerns with the companion cases discussed and suggest possible solutions to limit the unfair advantage prosecutors currently have over defendants during plea bargaining.(fn14) Finally, the Conclusion will outline why claims of ineffective counsel that result from the rejection of a favorable plea offer are acceptable and appropriate under the current judicial system.(fn15)

II. BACKGROUND

A. THE ROLE OF PLEA BARGAINING IN THE JUDICIAL SYSTEM

Brady v. United States(fn16) was one of the first United States Supreme Court decisions to recognize the importance of plea bargaining in the American judicial system.(fn17) At the time of Brady, over three-fourths of criminal convictions were the result of guilty pleas.(fn18) Noting the benefits that both the defendant and the State received from the plea bargaining process, the Court opined that negotiating between the State and the defendant was constitutional.(fn19) In Santobello v. New York,(fn20) the Court went even further and stated that plea bargaining was an essential component of the judicial system, and when done correctly, plea bargaining should be encouraged.(fn21) From a public policy standpoint, the plea bargaining process is not only good for the judicial system but also for defendants and society as a whole.(fn22) Sentences are imposed much quicker when a defendant agrees to plea bargain, which may create a sense of security among the public, as opposed to defenders who are out on bail awaiting trial.(fn23)

Because the Court's declaration of the constitutionality of plea bargaining, three themes have emerged.(fn24) First, the standard of a voluntary and intelligent guilty plea remains at the crux of the Court's review in these cases.(fn25) The Court also recognized the prosecution's upper hand and ability to pressure defendants into guilty pleas.(fn26) This advantage led the Court to repeatedly emphasize the second theme, the importance of defense counsel during plea bargaining.(fn27) The requirement of counsel supports a notion of fairness in the plea bargaining process.(fn28) The presence of defense counsel during plea negotiations also increases the likelihood that the defendant will enter his plea knowingly and intelligently.(fn29) The last theme presented was the Court's stressing the importance of plea bargaining and the vital role it plays in the judicial system.(fn30) For instance, plea bargaining allows for efficient final dispositions of the great majority of criminal cases and thus saves prosecutorial resources.(fn31) The opportunity to plea bargain also allows the defendant to gain some control in the disposition and choose whether to accept a less severe sentence or to proceed with trial.(fn32) After the defendant enters a guilty plea, the court cannot impose a harsher sentence than that agreed to per the plea deal.(fn33) Furthermore, the defendant can avoid extensive financial costs associated with a trial by electing to plea bargain.(fn34)

B. DEFICIENT COUNSEL AND PREJUDICIAL EFFECTS: THE STRICKLAND TEST FOR DETERMINING WHETHER COUNSEL ASSISTED EFFECTIVELY, AS GUARANTEED BY THE SIXTH AMENDMENT

Among other rights, the United States Constitution enumerates the right to counsel in a criminal proceeding.(fn35) The Sixth Amendment includes the defendant's right to select who will represent him, as well as the guarantee that counsel be qualified.(fn36) A defendant's claim that counsel is unqualified or ineffective is governed by the United States Supreme Court's decision in Strickland v. Washington,(fn37) which announced the test for ineffective counsel claims.(fn38) The ineffective counsel test is a two-prong test that includes a showing of both deficiency and prejudicial effects.(fn39) In Strickland, the Court articulated Washington had failed to establish his counsel had acted deficiently or caused him to suffer prejudice during the sentencing phase of his trial.(fn40)

After the Florida Supreme Court affirmed Washington's sentence, Washington filed a writ of habeas corpus in the United States District Court for the Southern District of Florida alleging his counsel had failed to be effective in five ways.(fn41) The federal district court only considered whether Washington had been prejudiced by his defense counsel's action or inaction.(fn42) Washington did not prove his defense counsel had been ineffective; therefore the federal district court determined Washington failed to show he suffered prejudice due to his counsel's failure to investigate mitigating factors.(fn43)

Washington appealed the ruling on the basis that the federal district court employed the wrong test in determining whether his defense counsel had been effective.(fn44) The United States Court of Appeals for the Fifth Circuit concluded the federal district court used an improper test to determine if Washington's counsel had been effective.(fn45) The Fifth Circuit remanded and instructed the federal district court to first determine whether the defense counsel's overall representation in the sentencing proceeding had failed to meet the effective assistance of counsel requirement.(fn46) Second, the Fifth Circuit directed that if defense counsel's assistance demonstrated ineffectiveness, the federal district court should then assess whether Washington was prejudiced by the ineffective assistance of counsel.(fn47) The Fifth Circuit noted the federal district court relied only upon the prejudice prong and failed to properly assess the defense counsel's overall representation.(fn48) A Fifth Circuit panel of judges remanded and instructed the federal district court to apply its framework to the ineffective counsel claim.(fn49) However, the Fifth Circuit then vacated its ruling and reheard the case en banc.(fn50) The Fifth Circuit determined counsel was not ineffective for failing to investigate a potential defense that counsel decided would not be a part of his strategy.(fn51) If a habeas petitioner is making a claim of ineffective assistance of counsel, he must show a suffering of actual and substantial disadvantage to his defense.(fn52)

The Court granted certiorari to Strickland, an official at the Florida state prison, and other state officials to review the Fifth Circuit's ruling.(fn53) This case gave the Court the opportunity to officially rule on the proper standard for determining if counsel had been effective.(fn54) The Court formulated the standard in consideration of the primary purpose of the Counsel Clause of the Sixth Amendment: to ensure a fair trial.(fn55) The new standard included: (1) a showing that counsel's performance was deficient, and (2) a determination that the deficiency prejudiced the defendant.(fn56) Only prejudice that led to an unfair trial would meet the level required by this standard.(fn57) Furthermore, the defendant had the burden of proving both prongs in order to prevail on an ineffective counsel claim under the Sixth Amendment.(fn58)

Since Strickland, the established test for ineffective counsel has been applied to defendants' claims of ineffective assistance of counsel during the plea bargaining stage.(fn59) The deficiency prong of the test is satisfied when the defendant proves the advice given by counsel was outside of the scope of advice other criminal defense attorneys would...