A plea for funds: using Padilla, Lafler, and Frye to increase public defender resources.

• Author: Johnson, Vida B.

A desperate defendant facing a first-degree murder charge sends a letter to the judge in his case. It reads in part, "My lawyer turned down a plea to eight years without ever telling me about it."

The judge inquires about this allegation at the next hearing and finds out that there had in fact been a plea offer extended--it was an offer to plead guilty to armed manslaughter. The relevant sentencing guideline range would have called for a sentence of between seven and a half and fifteen years in prison. Records show that the attorney never visited the man in jail during the two weeks that the plea offer was on the table. The attorney does not claim to have discussed the plea offer with the client at any point until after it had expired.

The judge asks the prosecutor if the plea bargain can be re-extended. The prosecutor refuses, and instead extends a new plea offer to second-degree murder. The man now faces fourteen to twenty-eight years in prison, nearly double the time of the previous offer. (1)

1. INTRODUCTION

   Fifty years ago in Gideon v. Wainwright, (2) the United States Supreme Court promised that criminal defense lawyers would protect poor people who were "haled into court" as criminal defendants with all of the power of the government brought down upon them. (3) "Governments, both state and federal," the Court noted, "quite properly spend vast sums of money to establish machinery to try defendants accused of crime." (4) Therefore, the Court concluded, lawyers to defend those accused by the government in criminal cases are "necessities, not luxuries," and that the "noble ideal" of "every defendant standing] equal before the law ... cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." (5) The mere presence of a lawyer, of course, is virtually meaningless. Rather, following Gideon, the Court indicated that the Constitution requires the "effective assistance" of "reasonably competent" counsel. (6)

   While some states and local jurisdictions had already created programs to provide criminal defense lawyers to indigent defendants--either public defender offices, panels of court-appointed lawyers, (7) or both--after Gideon there was a virtual explosion in the creation and funding of indigent defense programs throughout the country. (8) Unfortunately, despite the decades that have passed since the Court's promise in Gideon, poor criminal defendants continue to receive representation that falls short of putting them on equal footing with the prosecution machinery fueled by vast sums of government money. Some even argue that the level of representation on behalf of the poor has actually deteriorated over the years. (9) In many cases, this sub-standard representation is the result of indigent defense programs with too many cases and too few resources. Not coincidentally, more and more criminal cases resolve themselves by guilty plea rather than trial. (10) Indeed, the Court recently acknowledged that our "criminal justice [system] today is for the most part a system of pleas, not a system of trials," (11) and noted that well over ninety percent of convictions are by guilty plea in this country, in both the state and federal court. (12)

   At the same time, in three recent opinions--Padilla v. Kentucky, (13) Lafler v. Cooper, (14) and Missouri v. Frye (15)--the Court concluded that the right to effective assistance of counsel applies to plea negotiations, clarified how defendants can obtain relief when their attorneys have failed them in the plea process, explained what relief is available, and expanded the requirements of effective lawyering at that crucial stage in the criminal process. These three cases together now set the standard for the most basic service that public defenders provide: advice regarding guilty pleas. By establishing in relatively concrete terms the constitutional "floor" for effective assistance of counsel during plea bargaining, and the possible relief for defendants when those standards are not met, the Court has provided indigent defendants and their lawyers with a significant stepping stone towards realizing the promise of Gideon: resources to adequately respond to the prosecution's awesome power.

   Cases like the hypothetical one at the beginning of this Article are happening in courtrooms all over the country. Because defense lawyers are so busy, they often spend more time on cases they believe are destined for trial than on those that are likely to plead out. Attorneys sometimes fail to get plea offers to their indigent clients before they expire, and more frequently fail to provide their clients with the information necessary to make intelligent, informed decisions about whether to plead guilty or go to trial.

   These failures have a powerfully detrimental impact on indigent criminal defendants and their loved ones. The innocent may plead guilty, and the guilty may end up suffering far greater consequences than they would have with more effective representation. For instance, after pleading guilty, indigent defendants often suffer such secondary consequences as deportation, (16) eviction, (17) and job loss. (18) Furthermore, the experience of being advised to take a plea undoubtedly leads indigent criminal defendants and their communities to distrust court-appointed attorneys and the criminal justice system as a whole. While simple fairness has not been enough to convince courts and indigent defense providers to ensure that defendants receive adequate advice regarding pleas, another incentive has emerged: the standards and relief established by Padilla, Lafler, and Frye. If lawyers for indigent defendants are not provided up-front with the resources necessary for effective plea-bargaining, subsequent litigation regarding inadequate plea advice costs both judges and lawyers even more valuable resources in the weeks, months, and years after convictions. (19)

   In the same way that the Court revolutionized the criminal justice world with its ruling in Gideon, (20) these recent cases might also radically change the criminal justice landscape. This Article will attempt to answer the following question: if there is a solution for the ever-growing case load of the public defender and the crisis of indigent defense, can Padilla, Lafler, and Frye be a significant part of the solution?

   This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet. It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements. To do so, I will begin in Part II by discussing guilty pleas in general. I will then describe the legal landscape prior to Padilla, Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV. In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining. In Part VI, I will discuss the problem of the overburdened public defender office. Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.

2. THE GUILTY PLEA

   1. The Plea Bargaining Process

      A plea bargain, generally negotiated by the prosecutor and the defense attorney, is the exchange of a criminal defendant's constitutional right to a trial (21) for some benefit from the government, typically a reduced sentence. While no defendant has the right to a plea deal, (22) prosecutors often offer plea bargains because their caseload is too burdensome to adequately prepare every case for trial. (23) Offering pleas to lesser crimes or to more lenient sentences ensures convictions for prosecutors and lightens their workloads. (24)

      The plea bargaining process can be quite fluid. While some prosecutors' offices have guidelines prescribing certain pleas for specific charges, other offices give complete discretion to the particular government attorney handling the case. In addition, the terms of the agreement, the length of time for which an offer is left open, and many other details regarding the plea can vary significantly even within the same jurisdiction. (25) In most jurisdictions, judges have no involvement at all in the plea bargaining system. (26) The result is often a plea bargaining system where the government holds every card but one.

      The decision to go to trial or to take a guilty plea belongs solely to the criminal defendant, and not his lawyer. (27) Of course, most criminal defendants rely heavily on their attorneys' advice when making this decision, in the same way that patients will rely on their doctors' advice about medical treatment. The defense attorney and her client together typically assess their chances at trial, the maximum and minimum sentences and any sentencing guideline ranges after a loss at trial against the plea offer, as well as the likely sentences after a trial loss against the plea offer. Sometimes the actual sentence is agreed upon by the parties and becomes a foregone conclusion if the plea offer is accepted. Often the defense attorney will provide specific advice about the offer, advising her client to accept the plea or not. The defendant then decides either to accept the plea offer or to go to trial, with the benefit of her lawyer's advice. While many details can be negotiated by the attorneys, the plea offer is not binding on the government until it is accepted in court on the record. (28)

   2. The Centrality of Guilty Pleas to the Criminal Justice System and Criminal Defense Practice

      There is little question that the guilty plea has become an "essential part" of our criminal justice system. (29) As the Supreme Court wrote in Frye, "[t]o note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their...